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Court of AppealStruck OutCivil Application (number not stated in the judgment; heard together with Civil Application No. E245 of 2024)

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)

Court of Appeal
7 November 2025
177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a brief interlocutory ruling of the Court of Appeal in Nairobi delivered on 7th November 2025 by a bench of Kiage, Mohammed and Korir, JJ.A. The application before the court arose out of a direction issued on 16th December 2024 by Karanja, Gatembu Kairu and Korir, JJ.A, that the applicants' application be heard together with Civil Application No. E245 of 2024, an application by Equity Bank of Kenya against the Gatabaki ad litem representatives and others. In the companion application, E245 of 2024, the court had allowed an application to strike out the applicants' Notice of Appeal. Since the present Notice of Motion dated 11th October 2024 was premised entirely on that Notice of Appeal, the court held that it had 'no pedestal upon which to stand' once the Notice of Appeal fell. The Motion was accordingly struck out, with costs awarded to the respondents who had participated in the application. The ruling is a short procedural disposition with no separately written opinions, no authorities cited, and no decision below under review; its practical significance lies in the principle that an application anchored on a Notice of Appeal that has been struck out cannot survive independently.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

Fate of an application premised on a Notice of Appeal that has been struck out

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The applicants' Notice of Motion dated 11th October 2024 is struck out
  2. 2.Costs of the application to the respondents who participated in the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
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

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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

p. 2

Costs

Costs to the respondents who participated in the application

Quotable passages

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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.
p. 2Striking out of application whose foundation (Notice of Appeal) has been struck out

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.