CMM & another v Sarita t/a Myra IVF Clinic & 3 others (Civil Application E159 of 2026) [2026] KECA 1299 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court ruling halting criminal investigations into an IVF specialist, because a stay would reverse the judgment rather than preserve the situation.
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 under the first limb of the Rule 5(2)(b) test
- 2.Whether the intended appeal would be rendered nugatory if stay of execution and conservatory orders are not granted
- 3.Whether the High Court's prohibitory and negative orders are capable of being stayed
Key legal issues
#Whether the intended appeal was arguable
The intended appeal was arguable, raising bona fide questions about the extent to which the High Court could halt investigations, the relationship between criminal and regulatory proceedings, and the effect of orders on non-parties
The court applied the settled Rule 5(2)(b) test from Trust Bank v Investech and Stanley Kang'ethe Kinyanjui v Tony Ketter, requiring only a single bona fide arguable ground. It found such grounds in the questions concerning the halting of investigations, the interplay with KMPDC proceedings, the benefit extended to non-parties such as Dr. Bashir Dekow and Nairobi South Hospital, and the exercise of the judge's discretion, without expressing any concluded view on the merits.
Whether the appeal would be rendered nugatory absent a stay
The applicants failed the nugatory limb: criminal investigations can be revived if the appeal succeeds, the prohibition was not permanent being tied to the KMPDC determination, and fears of destroyed evidence or departure from jurisdiction were speculative
The court reasoned that a successful appeal would allow investigations to be revived, so refusal of stay would not destroy the subject matter. The impugned orders were temporary, tied to the KMPDC complaint's determination, and did not extinguish future investigative action. No concrete material demonstrated imminent destruction of evidence or irreversible events, and damages or future proceedings could not render success hollow.
Whether granting stay would reverse the judgment below
Granting the stay sought would revive investigations prohibited by the High Court, amounting to substantive relief at an interlocutory stage rather than preservation of the status quo
The court accepted the substance of the 1st respondent's argument that the impugned orders were negative and prohibitory. Suspending them would effectively reverse the High Court's judgment before the appeal was heard, going beyond preservation and granting at the interlocutory stage relief substantially similar to that sought in the intended appeal. This independently undermined the application.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory absent stay; both limbs must be satisfied
- A stay cannot be granted where its effect would be to reverse the judgment under appeal rather than preserve the status quo pending appeal
Court orders
#- 1.The applicants' Notice of Motion dated 28th March, 2026 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. E556 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)
Relief refused
#Stay of execution of the High Court judgment and decree of 4th March 2026 and conservatory orders pending the intended appeal
Although the intended appeal was found arguable, the applicants failed to satisfy the second limb; granting the orders would revive investigations the High Court prohibited rather than preserve the status quo, and the apprehended loss of evidence was speculative
Costs
No orders as to costs - given the nature of the case, each party to bear their own costs was not ordered; the court simply made no orders as to costs
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.
The applicants’ Notice of Motion dated 28th March, 2026, is hereby dismissed. Given the nature of the case, we make no orders as to costs.
As both limbs under Rule 5(2)(b) of the Court of Appeal Rules must be satisfied, the application fails.
granting the orders sought would not preserve the status quo, but would effectively revive investigations which the High Court prohibited, and thereby reverse the judgment under challenge before the intended appeal is heard and determined
The impugned orders were tied to the determination of the complaint before the KMPDC. The judgment therefore did not extinguish the possibility of future investigative action should circumstances warrant.
Issues in the judgment
#The supplementary affidavit of the 1st applicant is dated 22nd April, 2023, which precedes the High Court judgment of 4th March, 2026 and the application of 28th March, 2026; this appears to be an error in the date as printed in the judgment
The 1st respondent is referred to inconsistently as both 'He' and 'She' in the judgment; paragraph 1 states 'engaged the 1st respondent for IVF and surrogacy services' with pronoun 'she' used elsewhere, but paragraph 11 states 'The 1st respondent deposed that she is a licensed fertility specialist' while paragraph 14 uses 'She argued' yet paragraph 4 refers to respondents generally without conflict - however the judgment switches pronouns between paragraphs
The parties in the cause title are unclear: the application mentions 2nd, 3rd and 4th respondents represented by prosecution counsel and a notice of non-opposition by the 2nd respondent, but only the 1st and 2nd respondents are identified in the body
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CMM & another v Sarita t/a Myra IVF Clinic & 3 others (Civil Application E159 of 2026) [2026] KECA 1299 (KLR)", Case Analysis (2026). Court of Appeal Application (Notice of Motion dated 28th March 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1299/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.