Maina v Gachagua & 66 others (Civil Application E534 of 2025) [2025] KECA 1946 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause the Deputy President impeachment court cases, ruling that stopping proceedings is an exceptional measure that prolongs uncertainty.
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 intended appeal is arguable under the Rule 5(2)(b) dual-limb test
- 2.Whether the intended appeal would be rendered nugatory if the proceedings in the High Court are not stayed
Key legal issues
#Whether the intended appeal challenging the High Court's declaration that pending applications were 'overtaken by events' and 'spent' is arguable
The intended appeal is arguable, meeting the low threshold of raising even a single bona fide point of law or fact
The court applied the settled Rule 5(2)(b) principles in Stanley Mumo Kiima Kinyanjui v Tony Keter, noting the threshold for arguability is low and easily met. It declined to make determinative findings on the merits at the interlocutory stage, deferring to the bench that would hear the appeal. The applicant's grounds on nullity of the impugned bench's rulings and fair-hearing rights warranted consideration.
Whether the intended appeal would be rendered nugatory absent a stay of the High Court proceedings
No nugatory prejudice was demonstrated; the stay limb failed and the motion was dismissed
Drawing on Kenya Wildlife Service v James MuteMbei, Makena v Nalwa and the Supreme Court's guidance in Khan v International Commercial Company (K) Ltd, the court held that stay of proceedings is a grave, exceptional measure. It found the applicant would suffer no real prejudice if the substantive petitions proceeded, while a stay would prolong legal and constitutional uncertainty concerning the Office of the Deputy President. The court emphasized Article 159(2)(b) - justice shall not be delayed.
Legal principles established
#- Orders to stay proceedings are the exception, not the rule; appellate courts must be slow to impede expeditious trial-court proceedings
- The threshold for stay of proceedings is high and stringent because it interferes with a litigant's right to conduct litigation
- The threshold for arguability on a Rule 5(2)(b) application is low - a single bona fide point of law or fact suffices
Court orders
#- 1.The motion dated 4.9.25 as amended on 9.9.25 is dismissed, with costs abiding the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Constitutional Petition No E565 of 2024 (consolidated)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending intended appeal)
- Consolidated with
- Kerugoya Petitions No E013 of 2024, Kerugoya Petition No E014 of 2024, Kerugoya Petition No E015 of 2024, Nairobi Petition No E550 of 2024, Nairobi Petition No E522 of 2024, Nairobi Petition No E570 of 2024, Nairobi Petition No E572 of 2024
Relief refused
#Stay and suspension of all proceedings, directions or steps in the consolidated High Court petitions pending the intended appeal
The intended appeal, though arguable, would not be rendered nugatory; stay of proceedings is an exceptional measure that would prolong constitutional uncertainty and delay the expeditious determination of the substantive petitions
Costs
The motion was dismissed with costs, thereof abiding the outcome of the intended appeal
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.
Orders to stay proceedings ought to be the exception rather than the rule, when the entire justice project is properly understood.
an arguable appeal is one that raises even a single bona fide point of law or fact that calls for an answer from the respondent and is worthy of jural consideration and decision, the threshold is a low one, and easily met
We do not see what real prejudice the applicant stands to sufier from continuation and conclusion of the substantive petitions pending at the High Court.
Being so-minded, we find the motion before us to be devoid of merit. It is accordingly dismissed, with costs, thereof abiding the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Gachagua & 66 others (Civil Application E534 of 2025) [2025] KECA 1946 (KLR)", Case Analysis (2025). Application under Rule 5(2)(b) of the Court of Appeal Rules (intended appeal against High Court directions of 31.8.25 in Constitutional Petition No E565 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1946/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.