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Court of AppealDismissedCivil Application E088 of 2024

Atati v Ethics and Anti-Corruption Commission; Mwaita & another (Interested Parties)

Court of Appeal
19 December 2025
1,849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, Benard Atati, sought a stay of proceedings in Mombasa ELC Case No. 175 of 2009 under rule 5(2)(b) of the Court of Appeal Rules, 2022, pending an intended appeal against two rulings of the Environment and Land Court (Naikuni, J.) dated 30th May 2024 and 2nd July 2024. The trial court had disallowed his preliminary objection and striking-out motion, in which he contended that the EACC's suit was res judicata a judicial review proceeding in which the quashing of a Gazette Notice cancelling his title had been determined. The Court of Appeal (Murgor, Laibuta and Ngenye-Macharia, JJA) restated the twin threshold for stay of proceedings: an arguable, non-frivolous intended appeal, and that the appeal would be rendered nugatory absent stay. It found the eight draft grounds, including res judicata and alleged judicial bias, arguable without making definitive findings. However, on the nugatory limb, the Court noted that the suit property's title remains registered in the applicant's name and that a status quo order preserves his occupation and bars transfer to third parties, so he faces no threat of eviction and stands to lose nothing. The Court also emphasised that stay of proceedings is granted only in the rarest of cases. The application was dismissed with no order as to costs. The ruling binds the ELC, which may proceed to hear the suit; the res judicata question remains open for the full appeal.

Questions the Court framed

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

  1. 1.Whether the applicant has demonstrated an arguable intended appeal
  2. 2.Whether the intended appeal, if successful, will be rendered nugatory if stay of proceedings is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The eight grounds raised, including res judicata and bias, were not frivolous and warranted ventilation at the main hearing

Reasoning

The Court considered whether at least a single bona fide arguable ground existed. Without making definitive findings, it held the grounds challenging the trial court's res judicata finding and alleged bias were worthy of consideration, while avoiding embarrassment to the appeal bench.

p. 3
02

Nugatory limb / prejudice

Holding

The applicant failed the second limb because the title remains in his name and a status quo order protects his occupation, so no substantial loss would arise

Reasoning

Counsel confirmed the title is registered in the applicant's name and the trial court's status quo order prevents transfer to third parties and preserves occupation. The Court reasoned that without threat of eviction the applicant loses nothing, and it is in the interest of justice that the ELC case be heard to conclusion on merit.

p. 4

Legal principles established

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  • An applicant for stay of proceedings under rule 5(2)(b) must demonstrate the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay
  • Stay of proceedings pending appeal should be granted only in the rarest of cases where failure to grant it will prejudice the applicant

Court orders

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  1. 1.The Notice of Motion dated 18th July 2024 is dismissed
  2. 2.No order as to costs

The bench

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

majority
majority
On appeal from
Environment and Land Court of Kenya at Mombasa
ELC No. 175 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of proceedings before Mombasa ELC Case No. 175 of 2009 pending hearing and determination of the intended appeal

The applicant failed to demonstrate that the appeal would be rendered nugatory; title is in his name and status quo protects his occupation, so he stands to lose nothing

p. 4

Costs

No order as to costs

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.

In view of the forgoing therefore, we nd that the applicant has not surmounted the second limb under rule 5(2)(b) to warrant grant of the application in his favour. Consequently, the Notice of Motion dated 18th July 2024 is hereby dismissed with no order as to costs.
p. 4Final orders - dismissal of stay application
an applicant should demonstrate the twin principles that: the intended appeal is arguable and not frivolous; and that the intended appeal, if it succeeds, will be rendered nugatory if stay orders are not granted.
p. 3Threshold for stay of proceedings under rule 5(2)(b)
Stay of court proceedings pending hearing and determination of an appeal against an interlocutory ruling should only be allowed if the circumstances are such that the impugned order will signi cantly prejudice the applicant if the matter proceeds.
p. 4Stay of proceedings granted only in rarest cases

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, "Atati v Ethics and Anti-Corruption Commission; Mwaita & another (Interested Parties)", Case Analysis (2025). Civil Application E088 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2244/eng@2025-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.