Ekwee v Kaberia & 6 others (Civil Application E044 of 2025) [2025] KECA 2017 (KLR)
The bottom line
#The Court of Appeal refused to pause the Lodwar judgment ousting a church founder from leadership, ruling the appeal could not be undone if allowed to proceed.
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
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Arguability of the intended appeal
The draft memorandum of appeal raising 21 grounds was sufficient to establish arguability without delving into the merits
The applicant annexed a draft memorandum of appeal dated 7th July 2025 raising 21 grounds disputing the findings of the trial court. Applying the principle that an arguable appeal need not be one that will succeed and that only one arguable ground suffices, the Court was satisfied the grounds were arguable, leaving merits to the appellate bench.
Nugatory aspect of the twin principles
The appeal would not be rendered nugatory without a stay because any action taken by the respondents would be reversible; the applicant was effectively inviting the Court to reverse the trial court's orders at the interlocutory stage
The Court examined the declaratory and injunctive orders issued by the trial court and balanced the rival submissions. It found that nothing irreparable would occur since whatever action the respondents took would be reversible if the appeal succeeded. Granting stay at that stage would effectively determine the appeal substantively without hearing both sides, so the second limb of the twin principles failed.
Legal principles established
#- To succeed in a rule 5(2)(b) application for stay of execution, an applicant must satisfy the twin conjunctive principles: the appeal is arguable and would be rendered nugatory if stay is not granted.
- An arguable appeal does not necessarily mean one which will succeed; the applicant need only demonstrate that at least one ground is arguable.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The Notice of Motion dated 7th July 2025 seeking stay of execution is dismissed
- 2.Costs of the application awarded to the 1st – 5th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Lodwar
- Lodwar HCCC No. E008 of 2023
- Jurisdiction invoked
- Rules 5(2)(b), 43 and 49 of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the judgment of the High Court delivered on 7th July 2025 pending the hearing and determination of the intended appeal
The applicant satisfied the arguability limb but failed to establish that the appeal would be rendered nugatory, as any action taken by the respondents would be reversible if the appeal succeeds
Costs
The Notice of Motion dated 7th July 2025 is dismissed with costs to the 1st – 5th respondents.
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.
To succeed in an application for stay of execution, an applicant must satisfy the following twin conjunctive principles under rule 5 (2) (b) of this Court’s Rules: the appeal is arguable; and would be rendered nugatory if stay is not granted.
A casual look at the issues and the judgment shows that nothing will be rendered nugatory, as whatever action is taken by the respondents is reversible if the appeal succeeds.
In view of the above, we come to the inescapable conclusion that the Notice of Motion dated 7th July 2025 lacks merit. It is hereby dismissed with costs to the 1st – 5th respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ekwee v Kaberia & 6 others (Civil Application E044 of 2025) [2025] KECA 2017 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2017/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.