Nairobi City Water & Sewerage Company Ltd v Capture Solutions Ltd & 3 others
The bottom line
#Kenya's Court of Appeal refused to stop execution of an arbitral award against Nairobi Water because the company never properly filed an appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether stay of execution of the arbitral award and of execution proceedings should be granted pending the hearing of the intended appeal
- 2.Whether the 3rd respondent should be cited for perjury
- 3.Whether the respondents should be cited for contempt of court for reneging on an alleged undertaking not to execute
Key legal issues
#Whether stay of execution can issue pending an appeal that has not been procedurally initiated
Stay prayers fail because the applicant never obtained leave to appeal and filed no notice of appeal; without procedural intimation of appeal the Court lacks jurisdiction to entertain stay.
The Court traced the litigation history: every attempt to obtain leave or extension of time to appeal the arbitral award or the recognition decision was dismissed, culminating in the full bench dismissal of 31st July 2026 for res judicata and abuse of process. Since the notice of appeal confers jurisdiction, an applicant whose attempts to lodge one have hit a snag cannot enjoy stay orders.
Whether the respondents should be cited for contempt and perjury over an alleged undertaking not to execute
The contempt and perjury prayers fail; no evidence of the undertaking was placed before the Court and the high contempt threshold was not met.
The applicant asserted that stay applications were withdrawn on an undertaking by the 3rd respondent not to execute, but produced no evidence of it. Citing Republic v Mohammed & Another, the Court held it was not satisfied the respondents wilfully disobeyed any order. The Court noted, however, that collusion to escape a counsel's undertaking could attract contempt findings and sections 55 and 56 of the Advocates Act.
Whether the doctrine of merger bars stay of the recognised arbitral award
The respondents' merger argument was not necessary to decide, as the application failed on the absence of appellate jurisdiction; the Court did not adopt the merger doctrine as its basis.
The respondents, citing Virgin Atlantic, argued that merger sets in once an arbitral award is recognised, so the only decree capable of being stayed is the High Court decree, which is not under appeal. The Court disposed of the application on the notice-of-appeal/jurisdiction ground without expressly ruling on merger.
Legal principles established
#- It is the notice of appeal that confers jurisdiction on the Court of Appeal; without leave to appeal or a notice of appeal, prayers for stay of execution pending appeal are stillborn.
- A stay of execution is only granted where a party has procedurally intimated an intention to appeal.
- Contempt of court carries a high threshold of proof; wilful disobedience must be demonstrated on the record.
Court orders
#- 1.The application dated 26th November 2025 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Misc. Application No. 679 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal); Rule 4 (extension of time) referenced
Relief refused
#Stay of execution of the final arbitral award dated 27th December 2019 as recognised on 27th August 2020
The applicant has no notice of appeal and therefore no appellate jurisdiction to support; stay prayers are stillborn
Stay of all execution proceedings commenced by the respondents pursuant to the award
Same reason - no procedural intimation of appeal conferring jurisdiction
Citation of the 3rd respondent for perjury
No evidence of the alleged false undertaking was placed before the Court
Citation of the respondents for contempt of court, conviction and fine/imprisonment
High threshold for contempt not met; record does not reveal any undertaking or wilful disobedience
Costs
Application dismissed with costs 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.
A stay of execution is only granted where a party has procedurally intimated that it intends to appeal.
As this Court has stated time and again, it is the notice of appeal that confers on this Court the jurisdiction to entertain matters.
Where attempts by an applicant to file a notice of appeal have hit a snag as has happened in this case, the applicant is not entitled to enjoy orders of stay. Accordingly, the prayers seeking orders of stay of execution and proceedings must fail.
In conclusion, we find no merit in this application which we hereby dismiss with costs to the respondents.
Issues in the judgment
#Conflicting dates for the withdrawal/dismissal of Civil Application No. E406 of 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi City Water & Sewerage Company Ltd v Capture Solutions Ltd & 3 others", Case Analysis (2026). Civil Appeal (Application) E514 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1691/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.