Director of Criminal Investigations & another v Muturi Gakuo & Kibara Advocates & 3 others (Civil Application E079 of 2025) [2026] KECA 1025 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the release of a title deed, ruling that fears of evidence tampering were speculative and unsupported by concrete evidence.
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 Court has jurisdiction to entertain a stay and injunction application arising from criminal revision proceedings, given the scope of Rules 5(2)(a) and 5(2)(b) of the Court of Appeal Rules
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if stay and injunction orders are not granted
Key legal issues
#Jurisdiction of the Court of Appeal to grant stay/injunction pending appeal in criminal-origin matters
The objection that Rule 5(2)(a) is limited and Rule 5(2)(b) applies only to civil proceedings was dismissed; the Court invoked its inherent jurisdiction to apply Rule 5(2)(b) to the application
Relying on Mutune vs Republic and Republic vs Kenya Anti-Corruption Commission, the Court held that barring the application on the limited scope of Rule 5(2)(a) would bury substantive issues under a heap of technicalities. Given the peculiar nature of the application and orders sought, Rule 5(2)(b) was the more appropriate provision, and the Court considered it efficacious to invoke its inherent jurisdiction to apply it.
Arguability of the intended appeal
The draft memorandum raised arguable issues, including alleged conflation of criminal and civil proceedings contrary to Section 193A of the Criminal Procedure Code and reliance on matters not on the court record
Applying R.F.S. vs J.D.S. and Cleophas Wasike vs Mucha Swala, an appeal is arguable if it contains grounds that can genuinely be asserted and worthy of juridical investigation; a single such ground suffices, and it need not show overwhelming probability of success. The Court declined to interrogate the grounds definitively at the interlocutory stage.
Nugatory aspect of the intended appeal
The Applicants failed the nugatory test because their claim of risk of destruction or tampering of the title document was speculative and unsupported by concrete material
Citing Michael Sistu Mwaura Kamau vs EACC, the Court held that real and likely prejudice, not speculative conjecture, must be shown. The Applicants could not explain why the Respondents would interfere with the very document they rely on to establish registered ownership, and the Respondents could return the document if the appeal succeeded.
Legal principles established
#- The Court of Appeal may, in the exercise of its inherent jurisdiction, apply Rule 5(2)(b) and its attendant principles to a stay or injunction application arising from criminal proceedings, notwithstanding that the application was brought under Rule 5(2)(a)
- An applicant for stay or injunctive relief pending appeal must demonstrate that the intended appeal is arguable and that it will be rendered nugatory if the orders sought are not granted; the nugatory test requires real and likely prejudice rather than speculative conjecture
Court orders
#- 1.The preliminary objection on jurisdiction raised by the Respondents is dismissed
- 2.The Notice of Motion dated 21st August 2025 is dismissed
- 3.Costs of the application awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa High Court Criminal Revision No. E018 of 2025
- Jurisdiction invoked
- Articles 50, 159(2) and 245 of the Constitution; Sections 26(2) and 38(d) of the Court of Appeal (Organization and Administration) Act; Rules 5(2)(a), 5(2)(b), 20(2), 40, 43, 44, 49, 60 and 61 of the Court of Appeal Rules, 2022, with the Court invoking its inherent jurisdiction to apply Rule 5(2)(b)
Relief refused
#Stay of the Ruling and Orders of the High Court of 24th July 2025 pending the intended appeal
Applicants failed to satisfy the nugatory limb; no concrete material established imminent risk of destruction or tampering, and the document can be returned if the appeal succeeds
Injunction and stay of execution of the Ruling and Orders of 24th July 2025 pending the intended appeal
Applicants failed to satisfy the twin requirements of arguability and nugatory aspect under Rule 5(2)(b)
Costs
Costs of the application granted to the 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.
In sum, the Applicants have failed to satisfy the twin requirements of Rule 5 (2) (b) with the result that the Notice of Motion dated 21st August 2025 is without merit and is hereby dismissed with costs to the Respondents.
Guided by the aforecited authorities and the orders sought, we consider it eficacious to invoke the inherent jurisdiction of this Court to apply Rule 5 (2) (b) and the attendant principles to this application in view of the issues raised. Consequently, the objection is dismissed.
Now an appeal is said to be arguable when it contains grounds, points or issues that can genuinely be asserted, on which there can be divergent legal or factual positions of some merit worthy of juridical investigation and determination.
It is settled law that to satisfy the nugatory test, an applicant requires to show real and likely prejudice, rather than speculative conjecture.
That said, the principles governing applications for stay or injunctive relief pending appeal are well settled. An applicant must demonstrate that the intended appeal is arguable, and that it will be rendered nugatory if the orders sought are not granted.
Issues in the judgment
#The judgment is dated 29th May 2026 but recites that the application was filed on 21st August 2025 and refers to a draft memorandum raising grounds against a ruling of 24th July 2025; the chronology is internally consistent, but the delivery date of May 2026 follows a 'Notice of Appeal dated 1st August 2025' with no explanation for the long interval.
Paragraph 15 records the Applicants invoking Rule 5(2)(a) among others and relying on Mutune vs Republic, while paragraph 20 records the Respondents' objection as being that the Applicants improperly invoked Rule 5(2)(b); the recitals of the exact rule relied on vary within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Director of Criminal Investigations & another v Muturi Gakuo & Kibara Advocates & 3 others (Civil Application E079 of 2025) [2026] KECA 1025 (KLR)", Case Analysis (2026). Notice of Motion dated 21st August 2025 (arising from intended appeal against Mombasa High Court Criminal Revision No. E018 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1025/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.