Keitany v The Standard Group Limited t/a Kenya Television Network & 2 others

3. In the grounds appearing on the face of the motion as expounded on in the applicant’s supporting adavit which is signed but undated, it is averred that the record of appeal is yet to be led as proceedings are yet to be availed; the applicant has an arguable appeal; “if the stay is not granted the decretal sum” will be released to the respondent (sic) who, according to news reports has been facing deep-seated nancial challenges which would make it problematic to pay the applicant were the appeal to succeed, “as the applicant has been deprived of the fruits of [the] judgment for nearly six years;” and the respondent will suer no prejudice if the status quo is maintained pending determination of the appeal. 4. The motion is opposed by way of a replying adavit sworn on 11th March 2026 by Esperance Ogola, the 1st respondent’s Legal Ocer who swears that the High Court did not issue any positive orders capable of being executed; a second appeal is on points of law only yet the applicant has not pointed any in which his appeal is anchored; the sum of Kshs. 3,961,000 deposited was to await the outcome of the appeal at the High Court and, it being in favour of the respondents, the same has to be released to them; the applicant has not shown that the respondents would be incapable of satisfying any decree should his appeal succeed; and, the applicant cannot speak of fruits of a judgment when the same was rightfully set aside by the rst appellate court. 5. In written submissions which were highlighted orally before us by his learned counsel Mr. Kirima, the applicant indicated that the application is anchored on the twin test of arguability of the appeal and the nugatory aspect, for which he cited Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR. He urged that the learned judge erred in failing to distinguish between two distinct defamation cases led by the applicant, one against the Standard Group Ltd and the other against Kenya Television Network (KTN). 6. On the nugatory aspect, counsel repeated that it had been “widely reported” that the Standard Group has been facing “severe nancial challenges in the past few years” and it would, therefore, be “unable and under strain” to refund the decretal sum if paid to it, to the applicant’s severe prejudice and irreparable loss. He cited National Industrial Credit Bank Ltd Vs. Aquinas Francis Wasike & Anor [2006] KECA 333, for the contention that once he questioned the 1st respondent’s nancial status, it was for the latter to show what resources it has as the same is peculiarly within its knowledge within the meaning of section 112 of the Evidence Act. 7. On his part, learned counsel Mr. Ngechu for the respondents reiterated that the judgment of the High Court is not one capable of being executed and so a stay of the same does not arise. Further, there is no decretal sum as such since the High Court did not award the respondents any money. The funds deposited with the bank were in the nature of security and, once the respondents’ appeal succeeded at the High Court they had to be released to them as the persons who deposited. He then urged that the 1st respondent is a going concern, and no evidence of its alleged impecuniosity or inability to satisfy any judgment that could eventually issue herein was tendered by the applicant. For good measure, he stated that the respondents were not at this point seeking to recover the costs awarded them by the High Court. 8. We have considered this application and do recall that we did question Mr. Kirima on whether there was any order or decree of the High Court capable of execution that we could then legitimately be invited to stay. After our urgings that he reect on the matter, he came back to say that his instructions were to proceed with the application. We think, with respect, that the order given by the High Court allowing the respondents’ appeal thereto and setting aside the judgment of the Chief Magistrate’s Court is not one capable of execution or stay. It did not require or authorize any party to pay any money or do anything. It actually dismissed the suit before the lower court which, essentially, means that what https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1802/eng@2026-09-25 2

page 2 of 3

emerged was a negative order incapable of execution. This Court has spoken on the impossibility of staying negative orders in a long line of authorities, foremost of which is Western College of Arts and Applied Sciences vs. E.p. Oranga & 3 Others, Civil Application No. Nai. 4 of 1976, [1976] KECA 15 (KLR). 9. On the merits of the application we could consider the appeal arguable since the threshold of arguability is a very low one requiring one to raise a single bona de question of law (on second appeal) which calls for an answer from the respondents and is worthy of juridical enquiry and it need not succeed ultimately. Thus, very rarely, and only in the clearest and most obvious of cases, does the Court at interlocutory stage declare an appeal or intended appeal unarguable, lest it should embarrass the bench that it ultimately charged with the hearing of the appeal. 10. The two limbs are, however, conjunctive and an applicant must go beyond arguability and demonstrate that if a stay is not granted the appeal would be rendered nugatory by reason of some irreversible and grave action having taken place in the meantime. In the present case, there is nothing that will take place in execution of the orders of the High Court, as we have already stated. The initial decretal sum deposited in the bank would be released, not as an award of the High Court, but as a logical consequence of success of the appeal by the parties who made the deposit. It is their money, not the liquid expression of the High Court’s decree. Its release has no bearing on the appeal and cannot render it nugatory. Even if it did have any relevance (and it does not) it would at best be a monetary decree incapable of reaching the threshold of nugatory. This is especially so when nothing has been placed before this Court, beyond a report by some outlet called NewsFlash, that the 1st respondent is under nancial distress and has disputes with its employees over pay. With respect, we cannot take such a report by such an outlet as credible evidence in the face of an averment on oath that the 1st respondent is a going concern well able to meet its share of a sub–Kshs.4 million decree should the applicant’s appeal succeed. 11. The upshot of our consideration of this motion is that it is devoid of merit. The same is dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE ………………………………………… JUDGE OF APPEAL JAMILA MOHAMMED ………………………………………… JUDGE OF APPEAL S. ole KANTAI ………………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1802/eng@2026-09-25 3

page 3 of 3