Nation Media Group Limited v Gatonye (Civil Application E653 of 2024) [2025] KECA 1173 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop execution of a Kshs 13.2 million libel award against Nation Media Group because the winner can refund the money if the appeal succeeds.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Nation Media Group's intended appeal is arguable
- 2.Whether, if stay of execution is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
Arguability was conceded and the court accepted that the challenge to the justification of the damages awards raised an arguable point.
Counsel for the respondent conceded the appeal may be arguable. The court applied the definition of an arguable appeal as one raising a bona fide issue worthy of consideration, and found that the challenge to the justification of the damages awards was such an issue.
Whether the intended appeal would be rendered nugatory without a stay
It would not. The subject matter is a monetary decree; the respondent averred he is a man of means able to refund the decretal sum, and that averment was undisputed. The applicant also settled awards in other related suits.
The purpose of a stay is to preserve the subject matter of the appeal. With a monetary decree, the applicant had to show undue financial hardship or irreversible prejudice. It failed to do so: the respondent's ability to refund was undisputed, and the applicant had already settled other related awards without complaint.
Burden of demonstrating the decree-holder's inability to refund
The burden lay on the applicant to demonstrate that the respondent could not repay the decretal sum; no such allegation was made.
Relying on National Industrial Credit Bank Limited v Aquinas Francis Wasike, the respondent submitted that the applicant bore the burden of showing he was a man of straw before any evidential burden shifted to him. The court found the averment of ability to repay was not disputed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent stay.
- An appeal is rendered nugatory where the effect of not granting a stay would be irreversible or where damages would not reasonably compensate the aggrieved party.
- For a monetary decree, financial hardship must be demonstrated; where the decree-holder is shown to be a person of means capable of refunding the decretal sum and that is not disputed, the nugatory limb is not satisfied.
Court orders
#- 1.Dismissal of Nation Media Group's application dated 27th November 2024 seeking stay of execution of the High Court judgment of 7th October 2022
- 2.Costs of the application awarded to Mr. Gatonye SC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Case No. 431 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the High Court judgment awarding damages of Kshs. 13,200,000 with interest
The applicant failed to satisfy the second limb of the Rule 5(2)(b) test – that the appeal would be rendered nugatory – as the subject matter is a monetary decree and the decree-holder is a man of means capable of refunding the decretal sum
Costs
The application was dismissed with costs to Mr. Gatonye SC.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory.
the purpose of a stay of execution is to preserve the subject matter of the appeal
Nation Media Group has not satisfied the second limb for the grant of orders of stay, namely that its intended appeal will be rendered nugatory. Its application dated 27th November 2024 is accordingly found not to have merit, and is hereby dismissed with costs to Mr. Gatonye SC.
Issues in the judgment
#The applicant's own narrative refers to a pending application for committal to civil jail, while the respondent clarified the pending proceedings concern attachment and sale of movable property; the court did not resolve this factual discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group Limited v Gatonye (Civil Application E653 of 2024) [2025] KECA 1173 (KLR)", Case Analysis (2025). Civil Application No. E480 of 2024 (to be read with Nairobi Civil Appeal (Application) No. E480 of 2022 – Nation Media Group Limited v Lucy M. Kambuni). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1173/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.