Gatabaki & 3 others (Suing as Ad Litem Representatives of Dr Samuel Mundati Gatabaki) & another v Muga Developers Limited & 11 others (Civil Application E519 of 2024) [2025] KECA 1828 (KLR)
The bottom line
#Kenya's Court of Appeal struck out Equity Bank's application because the Notice of Appeal it relied on had already been struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' Notice of Motion dated 11th October 2024, premised on a Notice of Appeal struck out in Civil Application No. E245 of 2024, could survive
Key legal issues
#Fate of an application premised on a Notice of Appeal that has been struck out
Once the foundational Notice of Appeal was struck out in the consolidated application, the present Motion had no leg to stand on and was struck out with costs
The court had, on 16th December 2024, ordered that this application be heard together with Civil Application No. E245 of 2024. The ruling in E245 of 2024 struck out the applicants' Notice of Appeal. Because the Motion before the court was premised entirely on that Notice of Appeal, the removal of its foundation rendered it incompetent and it was struck out with costs to the participating respondents.
Legal principles established
#- An interlocutory application founded upon a Notice of Appeal that has been struck out cannot stand and is liable to be struck out
Court orders
#- 1.The applicants' Notice of Motion dated 11th October 2024 is struck out
- 2.Costs of the application to the respondents who participated in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal over its own interlocutory applications (no specific provision cited in the judgment)
- Consolidated with
- Civil Application No. E245 of 2024 - Equity Bank of Kenya vs. Nancy Wanja Gatabaki, Josephine Beatrice Gathoni Gatabaki, Esther Susan Wangari Gatabaki Suing as ad litem representatives of Dr. Samuel Mundati Gatabaki & 11 Others
Relief refused
#The relief sought in the Notice of Motion dated 11th October 2024
The application was premised on a Notice of Appeal that had already been struck out in Civil Application No. E245 of 2024, leaving it without basis
Costs
Costs to the respondents who participated in the application
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.
the applicants' Notice of Motion dated 11th October 2024 has no pedestal upon which to stand and is for striking out, and is hereby struck out with costs to the respondents who participated in the application.
Issues in the judgment
#The judgment does not state the case number of the application itself; only the consolidated companion application (Civil Application No. E245 of 2024) is identified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatabaki & 3 others (Suing as Ad Litem Representatives of Dr Samuel Mundati Gatabaki) & another v Muga Developers Limited & 11 others (Civil Application E519 of 2024) [2025] KECA 1828 (KLR)", Case Analysis (2025). Civil Application (number not stated in the judgment; heard together with Civil Application No. E245 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1828/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.