Kenya Electricity Transmission Company Limited (ketraco) v Instalaciones Inabensa Sa & 5 others
The bottom line
#KETRACO lost its bid to freeze the Euro 37 million judgment enforcement because appeals against garnishee orders in Kenya need court leave first.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal lies as of right against a garnishee order nisi made under Order 23 of the Civil Procedure Rules
An order under Order 23 rules 1 and 2 is not listed in section 75(1) of the Civil Procedure Act nor in Order 43 as appealable as of right; leave is required and none was sought or granted.
Section 75 of the Civil Procedure Act sets out decisions from which appeals lie as of right. Garnishee proceedings under Order 23 are not expressly identified. Section 75(1)(h) permits appeals from orders made under the rules if expressly allowed by rules, but Order 43 rule 1(1) does not list orders under Order 23 rules 1 and 2. The applicant did not show that leave had been sought and granted.
Whether the intended appeal is arguable
The intended appeal against the grant of a garnishee order nisi is not arguable, as a nisi order is interim and preserves funds pending interrogation of their ownership, and objections can be raised when the order nisi comes up to be made absolute.
The Court noted it was not conclusively determining whether the appeal arose from arbitral or execution proceedings, to avoid prejudicing future challenges to the appeal's validity. However, the applicant admitted the appeal targeted the garnishee order nisi, which is not absolute but preserves funds while the court interrogates ownership and availability. Nothing bars the applicant from raising its objections at the hearing to make the order absolute.
Whether the appeal would be rendered nugatory without stay
Having found the appeal not arguable, the Court declined to consider the nugatory limb.
The Kinyanjui v Ketter principles require satisfaction of both conditions - arguability and nugatory-ness. Since the applicant failed the first condition, the second did not need to be reached, and the application fell to be dismissed on that basis alone.
Legal principles established
#- Orders made under Order 23 rules 1 and 2 of the Civil Procedure Rules (garnishee proceedings) are not appealable as of right and require leave; an appeal under rule 5(2)(b) does not bind the bench that will ultimately hear the appeal.
- Both limbs of the test for stay under rule 5(2)(b) - arguability and nugatory-ness - must be satisfied; failure on either is fatal to the application.
Court orders
#- 1.The application for stay of execution pending intended appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- High Court at Nairobi
- Miscellaneous Application No. E445 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Company Limited (ketraco) v Instalaciones Inabensa Sa & 5 others", Case Analysis (2026). Notice of Motion dated 23rd December 2025 (Miscellaneous Application arising from High Court Miscellaneous Application No. E445 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/688/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.