Asanyo & another v Inspector General of Police & 4 others (Civil Appeal (Application) E086 of 2025) [2026] KECA 1140 (KLR)
The bottom line
#The Court of Appeal refused to pause a Kshs 611,207 costs bill and a criminal case, finding the appeal unarguable and the stay requests legally flawed.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the appeal
The applicants failed to demonstrate an arguable appeal; the grounds were unpersuasive against the backdrop of the ELC ruling upholding the preliminary objection on jurisdiction.
The ELC had upheld the 3rd and 5th respondents' preliminary objection that, by dint of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, it lacked jurisdiction to entertain a judicial review application challenging the DPP's decision to charge. The Court found the applicants' grounds unarguable against that backdrop and declined to say more, leaving the issues to the bench hearing the appeal.
Nugatory test
Even if the first limb had been satisfied, the appeal would not be rendered nugatory because the taxed amount is not substantial and the administrator has demonstrated ability and willingness to refund it.
The Court assessed the second limb hypothetically, noting the decretal amount (approximately Kshs 611,207/611,880) is not inordinately large, and one of the administrators of the estate, a senior officer in the army, swore he is able and willing to refund the money in the unlikely event the appeal succeeds.
Stay of criminal proceedings before a magistrate's court
The prayer to stay criminal proceedings in the magistrate's court is misconceived because the Court's Rule 5(2)(b) jurisdiction is triggered by a notice of appeal from the High Court or courts of equal status, not from a magistrate's court.
The Court held that Rule 5(2)(b) applications presuppose an appeal before it from the High Court or a court of equal status. Since the criminal case is pending before the Chief Magistrate's Court, the prayer to stay those proceedings pending appeal is not legally tenable and was declared a non-starter.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory absent stay; failure on one limb is fatal.
- An application for stay of proceedings under Rule 5(2)(b) requires demonstration of exceptional circumstances.
- The Court of Appeal's jurisdiction under Rule 5(2)(b) to stay proceedings arises from a notice of appeal from the High Court or courts of equal status; it cannot be invoked to stay criminal proceedings pending in a magistrate's court.
Court orders
#- 1.Dismissal of the application dated 22nd December, 2025
- 2.Costs of the application awarded to the 5th respondent
- On appeal from
- Environment and Land Court
- Kilgoris, Environment and Land Court Judicial Review Case No. E002 of 2024
- Jurisdiction invoked
- Article 164(3) of the Constitution; sections 3, 3A, 3B of the Appellate Jurisdiction Act (CAP 9); Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asanyo & another v Inspector General of Police & 4 others (Civil Appeal (Application) E086 of 2025) [2026] KECA 1140 (KLR)", Case Analysis (2026). Not stated in the extract (application dated 22nd December, 2025; relates to Civil Appeal No. E086 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1140/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.