https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1140

Asanyo & another v Inspector General of Police & 4 others (Civil Appeal (Application) E086 of 2025) [2026] KECA 1140 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1140 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E086 of 2025 JM Mativo, PM Gachoka & BM Kairaria, JJA June 12, 2026 Between Geoffrey Makana Asanyo 1st Applicant Wangui Kathyryn Kimani 2nd Applicant and The Inspector General Of Police 1st Respondent The Director Criminal Investigations 2nd Respondent The Director Of Public Prosecutions 3rd Respondent The Chief magistrate's Court Kilgoris 4th Respondent Angeline naisiano Nkoimo and John Maison Nkoimo (The legal representatives of Stanley Lemoiyo Nkoimo) 5th Respondent (An Application for Stay of Execution pending hearing and determination of the appeal from the Ruling and Order of the Environment and Land Court at Kilgolis (M. N. Mwanyale, J.) dated 17th March, 2025 in ELC Judicial Review Case No. E002 of 2024) Ruling 1.Before us is an application dated 22nd December, 2025 filed by Geoffrey Makana Asanyo and Wangui Kathryn Kimani [the applicants] seeking two principal prayers namely:a.stay of execution for taxed costs ordered to be paid by the applicants to the 5th respondent pending the hearing and determination of Civil No. E086 of 2025; andb.stay of further proceedings in Kilgoris Chief Magistrate’s court Criminal Case No. E807 of 2024 Republic vs. Geoffrey Makana Asanyo and Wangui Kathryn Kimani.The applicants also pray that the Court issue directions for the disposal of the appeal on priority basis and the costs incidental to the application abide the result of the appeal. 2.The application is expressed to be brought under Article 25[c], 48, 50, 159 & 164[3] of the Constitution of Kenya 2010, section 3 and 5 of the Court of Appeal [Organisational and Adminstration] Act, Section 3, 3A, 3B of the Appellate Jurisdiction Act CAP 9 Laws of Kenya, Rule 1[2], 5[2][b] of the Court of Appeal Rules, 2022. 3.The application is based on the grounds enumerated in the body of the notice of motion, supported by the affidavit and supplementary affidavit sworn by Geoffrey Makana Asanyo on 22nd December, 2022 and 4th March, 2026 respectively and amplified in the applicant’s written submissions dated 9th March, 2026. 4.Briefly stated the grounds upon which the application is founded are:a.the applicants have lodged an arguable appeal before this Court [Civil Appeal No. E086 of 2025] against the ruling of the Environment and Land Court delivered on 17th March 2025 [ Mwanyale J.] dismissing the applicants’ Judicial Review application with costs to the 5th respondent in Kilgolis, Environment and Land Court Judicial Review Case No. E002 of 2024;b.the appeal is not frivolous or idle and c] if successful be rendered nugatory unless this Court stays execution for recovery of costs of the dismissed suit taxed at ksh 611207 by the Deputy Registrar on 7th August, 2025.The applicants also prays that we stay further criminal proceedings against the applicants in Kilgoris, Chief Magistrate’s Court Criminal Case No. E807 OF 2024. 5.In the applicants have foisted five grounds contained in their memorandum of appeal dated 19th May, 2025 which they submit are arguable abbreviated as follows; whether the ELC judge erred in law and fact in:a.dismissing the appellants ‘Judicial Review application for want of jurisdiction, having correctly found that there are instances when it would be appropriate to challenge the decision to charge where the criminal charges relate to forgery of title which is subject of parallel substantive civil suit;b.holding that the matter before him was not appropriate to exercise the judicial review jurisdiction to question the validity of the decision to charge by the Director of Public Prosecution[the 3rd respondent];c.allowing the preliminary objection and dismissing the Notice of Motion application dated 26th November 2026 with costs without being addressed by the parties and as if he had considered it on merit;d.holding that the ELC could not handle the application despite correctly holding that the court was the appropriate court which decision conflicts itself; ande.failing to consider the appellant’s submissions. 6.On stay of execution pending appeal, Mr. Konosi learned counsel submitted that the applicants have satisfied the well settled twin principles for grant of stay under Rule 5[2] [b] enumerated in many decisions of this Court. To succeed, an applicant must demonstrate that he/she has an arguable appeal; and that the intended appeal or appeal if successful will be rendered nugatory if the execution of the decree, order or proceedings is not stayed. In support of that proposition Counsel cited Githunguri vs. Jimba Credit Corporation Ltd. [No. 2] [1988] KLR, David Morton Silvestein vs. Atsango Chesoni [2002] eKLR, Reliance Bank Ltd [in Liquidation ] vs. Northlake Investments [2002] 1 EA227; Nation Newspapers Ltd. Vs. Peter Baraza Rabando [2007] eKLR and Willliam Odhiambo Ramogi & 3 Others vs. Attorney General & 6 Others; Muslims For Human Rights & 2 Others [Interested Parties ][2020]eKLR. 7.Further counsel submitted that both conditions must be satisfied and failure to satisfy one would disentitle an applicant from grant of the order as was held in Retreat Villas ltd vs. Equitorial Commercial Bank Limited & 2 Others [2007] and an arguable appeal is not one that must succeed but one based on an issue or issues which merit consideration by the Court as was held in Attorney General vs. Okiya Omtata & Another [2019] eKLR and even one issue is sufficient and an applicant need not show a multiplicity of issues in line with the holding in Transouth Conveyors Ltd vs. Kenya Revenue Authority & Another [2007] eKLR. In support of the first condition Counsel submitted that the grounds in the memorandum of appeal are arguable and are not idle. 8.As to whether the appeal will be rendered nugatory, counsel submitted that this is so because if execution for costs proceeds the applicants are apprehensive that they will not be able to recover the monies paid to the 5th respondent, whose financial status is unknown. Counsel argued that the applicants’ averment in that the 5th Respondent’s financial status is unknown has not been controverted because only one of the administrators has stated in his personal capacity that he is capable of repaying the amount; and has not stated what assets the estate has yet it is trite that once the applicant calls to question or expresses fear about the respondent’s financial ability to repay any money paid in execution of the decree the burden of proving ability to repay shifts to the respondent. Counsel cited National Industrial Credit Bank ltd vs. Aquinas Francis Wasike & Another [1006] KECA 333KLR] and Kenya Orient Insurance Co. Ltd vs. Paul Mathenge Gichuki& Another [2014] KEHC5311[KLR] to buttress his argument and submitted that the respondent has not discharged that burden. 9.Turning to the question whether the appeal will be rendered nugatory if further proceedings in criminal case No. E807 of 2024 are not stayed pending the hearing of the appeal, counsel submitted that will be the case because the Magistrate’s court will proceed to hear and determine the case; which he contended will cause the applicants substantial loss in terms of travelling and accommodation expenses. Counsel further submitted that if the criminal proceedings are not stayed and the appeal succeeds, the applicants will have undergone an expensive trial, which could result in the applicants being sent to prison thus denying their liberty in contravention of their constitutional right to liberty. Furthermore, counsel argued that if the magistrate proceeds with the hearing of the criminal case and the appeal succeeds scarce judicial time which should otherwise have been utilized in hearing other cases, will have been wasted. Based on those submissions, the applicants urged us to find it is safer to stay execution and theproceedings before the magistrate’s court pending the hearing and determination of the appeal. 10.In opposition to the application, the 5th respondent relied on the grounds in the replying affidavit sworn on 2nd February, 2026 by John Maisoni Nkoimo in his capacity as one of the administrators of the Estate of the late Stanley Lemoiyo Nkoimo and amplified in the written submissions of his counsel dated 9th March 2026. Through the replying affidavit John Maisoni Nkoimo 5th Respondent contends that:a.the instant application is misconceived, frivolous, an abuse of the Court process and a mere afterthought intended to obstruct, delay and frustrate the lawful execution of taxed costs and the lawful continuation of lawful criminal proceedings;b.the applicants have not approached the Court with clean hands and have deliberately failed to make full and frank disclosure of material facts;c.the applicants were granted a conditional stay of execution by the ELC when they filed a reference before that court requiring them to pay Ksh.100,0000 which they failed to do and instead filed another application for stay of execution of the same orders under certificate of urgency which the ELC [Gacheru, J.] declined to certify urgent and directed that it be served and responded which is what has prompted the filing of present application before this court;d.the applicants have been indolent and are only jolted to action each time the respondent moves to execute against them. They lodged the appeal on 23rd May 2025 but waited for approximately seven months before seeking stay of execution after exhausting dilatory tactics before the trial court;e.the applicants have not met the legal threshold of demonstrating an arguable appeal which if successful will be rendered nugatory. The trial court correctly upheld the 5th and 3rd respondents preliminary objections and in holding that it lacked jurisdiction to determine the applicant’s challenge against the decision of the Director of Public Prosecutions to charge them in Kilgoris, Criminal Case No. 807 of 2024 and in dismissing with costs the applicants’ Judicial Review application for and order of Certiorari;f.the applicants have demonstrated that the appeal will be rendered nugatory, no irreparable or substantial loss will be suffered if execution of the taxed costs proceeds, the taxed costs of ksh 611880 is not inordinately large to warrant apprehension of recovery;g.The deponent of the replying affidavit is a senior officer in the army, is a person of known and considerable means and is fully capable of refunding the taxed costs in the unlikely event that the appeal succeeds;h.the applicants have failed to satisfy the strict and exceptional threshold required for stay of criminal proceedings including proving that the prosecution is actuated by malice, there is abuse of court process, the prosecution is instituted for an improper motive or in derogation of the applicant’s constitutional rights. 11.Mr. Muturi learned counsel for the Respondent, submitted that the application is for dismissal for failure to meet the settled legal threshold for the grant of stay of execution and stay of proceedings under Rule 5[2] [b]. He added that the principles governing applications for stay of execution under Rule 5[2] [ b] are well established in a long line of cases and cited Stanley Kang’ethe Kinyanjui vs. Tonny Ketter & 5 Others[2013]eKLR, which inter alia held that an applicant must demonstrate two key limbs: the intended appeal is arguable; and unless stay is granted, the appeal will be rendered nugatory. Counsel argued that the application collapses on the second limb because the applicants have not demonstrated that refusal of stay orders would render the appeal nugatory. He contended that the attempt to portray the 5th respondent as incapable of refunding the taxed costs of Ksh 611880 lacks factual basis as one of the administrators who is a senior officer in the Kenya Defence Forces, has sworn that he is able and willing to refund the taxed costs if required to do so and the sum is not substantial to raise a reasonable apprehension that it will not be refunded. Counsel further asserted that the applicants have acknowledged in the supplementary affidavit that the 5th respondent has in the past paid Ksh 500,000 in costs. 12.Counsel cited Royal Media Services Ltd. vs. Telkom Kenya Ltd. & 13 Others [2016]eKLR and submitted that the bare allegation that the respondent may be unable to refund the decretal sum does not without more render an appeal nugatory and that the Court must balance the competing interests of the parties when determining whether an appeal involving a money decree will be rendered nugatory. Counsel also relied on Ibrahim Ahmed vs. Returning Officer Kamukunji Constituency &4 others [2008]eKLR, where this Court rejected the applicant’s contention that the Respondent lacked means and held that the respondent’s status as a member of Parliament demonstrated sufficient financial capacity to refund the decretal sum if required. 13.Regarding stay of further proceedings in Criminal Case NO. 807 of 2024 pending appeal, the 5th respondent’s Counsel cited Edermann Property Limited & 2 Others vs. Ethics and Anti-Corruption Commission & 5 Others [2022] KECA 860[KLR] and submitted that the applicant must demonstrate exceptional circumstances justifying interference with ongoing criminal proceedings in addition to showing an arguable appeal that would be rendered nugatory. Counsel submitted that no exceptional circumstances exist in the instant case to warrant a stay of the criminal proceedings. Counsel noted that criminal proceedings are not in themselves irreversible events that would render an appeal nugatory as appellate courts retain jurisdiction to set aside the findings of the trial court if the appeal succeeds. In any event, counsel contended that any prejudice allegedly suffered as a result of criminal proceedings can be compensated by damages in action founded on malicious prosecution as held in Simon Nyamanya Ondiba vs. Director of Public Prosecutions & 3 Others; Rose Njeri Macharia [Interested Party] [2019] KECA 642 [KLR]. 14.We have carefully considered the grounds of the application, the affidavits in support and opposition thereto, the rival submissions together with the relevant case law cited by the parties advocates setting out the principles that govern the exercise of this Court’s jurisdiction when considering an application for stay of execution and proceedings under Rule 5[2] [b] of the Court of Appeal Rules 2022. Both parties agree that the principles governing the exercise of jurisdiction when considering an application of this nature are well settled. The applicant must demonstrate that the appeal is arguable, not frivolous, idle or trifling, though not one that must ultimately succeed and secondly that the appeal if ultimately successful will be rendered nugatory absent stay. In the case of an application for stay of proceedings, the applicant must demonstrate exceptional circumstances to justify the Court’s exercise of discretion in his favor. 15.Where the parties sharply differ is not on the principles applicable in determining the present application but as always on the result of the application of those principles on the peculiar circumstances of this case, which is not surprising in the adversarial litigation setting of the inherited common law tradition. In this regard, the applicants have urged us to allow the application because they have met the legal threshold for grant of the orders of stay of execution and stay of proceedings. The 5th respondent on his part says that the applicants have failed to meet the legal threshold for grant of the orders sought and urged us to dismiss the application with costs. 16.The first question for our determination is whether the applicants have demonstrated an arguable appeal. The applicants say they have an arguable appeal based on the grounds in the memorandum of appeal but we are not persuaded about the arguability of those grounds when looked at against the backdrop of the ruling appealed against upholding the 3rd and 5th respondent’s preliminary objection that the Environment and Land Court by dint of Article 162[2][b] of the Constitution and Section 13 of the Environment and Land Court Act lacked the requisite jurisdiction to entertain the applicants’ judicial review application challenging the decision of the Director of Public Prosecutions [3rd respondent] to institute criminal proceedings against them. We say no more but leave the isues for determination that will hear and determine the appeal. 17.Having failed to satisfy the first limb, we should stop there.However, even if we were to consider whether the appeal would be rendered nugatory absent stay, we note that the taxed amount is not substantial and the administrator of the applicant has demonstrated that he is able and willing to refund the money in the unlikely event that the appeal succeeds. 18.On the prayer for stay of the proceedings in Criminal Case No 807 0f 2024, we note that this prayer is nonstarter. The jurisdiction of this court is triggered by the filing of a notice of appeal from the High Court or Courts of equal status. The applicant is inviting us to stay criminal proceedings pending in a magistrate court. Such a prayer is not legally tenable and is misconceived. We say no more. 19.In the end, we come to the conclusion that the application dated 22nd December, 2025 is without merits, and is hereby dismissed with costs to the 5th respondent. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE 2026.J. MATIVO......................................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb.......................................JUDGE OF APPEALMURUNGI B. KAIRARIA......................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar