https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12188

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW NO. E107 OF 2026** **JACINTA NYAMBURA KURIA & 83 OTHERS…………………………………………..APPLICANTS** **AND** **THE DIRECTOR OF PUBLIC PROSECUTIONS……………………………....…1ST RESPONDENT** **THE HON. ATTORNEY GENERAL……………………………………………..……2ND RESPONDENT** **THE INSPECTOR GENERAL OF POLICE…………………………………..…..…3RD RESPONDENT** **PHILIP JAMHURI MAINGA……………………….………………………….……….4TH RESPONDENT** **KENYA RAILWAYS CORPORATION………………….………………………...…..5TH RESPONDENT** **PROCUREMENTS REGULATION AUTHORITY…………………………......…6TH RESPONDENT** **RULING** 1. On 3rd July 2026, I delivered a judgment herein, allowing the claim by the applicants, with respect to investigations into the criminal culpability of the 4th and 5th respondents, regarding the flooding incident at Maai Mahiu in 2024, with a view to a possible prosecution; directing the 1st and 2nd respondents to conduct the investigations within 30 days; and granting liberty to the applicants, after lapse of the 30 days, to mount a private prosecution. 2. The 4th and 5th respondents have come back to court, by way of a motion, dated 17th July 2026, in which they seek stay of execution of the said orders, to prevent exposing them to criminal investigative and prosecutorial processes. The argument is that they have lodged a Notice of Appeal, and are in the process of pursuing an appeal at the Court of Appeal, challenging the legality of the mandatory nature of the said orders. It is averred that the appeal raises substantial, serious and arguable constitutional and legal issues, and that execution of the decision by the applicants, before the appeal is heard and determined, would render it a nullity. It is prayed that, unless the court stays the execution implementation and enforcement of the impugned judgement, the mandatory timelines imposed will continue to run, thereby exposing the 4th and 5th respondents to imminent criminal investigative and prosecutorial processes, before the intended appeal is heard. A copy of the notice of appeal, lodged herein, dated 16th July, 2026 is attached. 3. The notice of motion, dated 17th July 2026, was placed before me, under certificate of urgency. I certified the same urgent, and gave directions, relating to service and *inter partes* hearing on 29th July 2026. 4. The application was served, on 21st July 2026. The applicant filed a replying affidavit, sworn on 27th July 2026, by Mr. Bernard Ndungu Kamau, averring that the application does not meet the legal threshold for grant of stay pending appeal, and urging its dismissal with costs. The other parties did not file responses to the application. The parties appeared for *inter partes* hearing, on 29th July 2026, and the application was argued. 5. At the oral hearing of the application, the 4th and 5th respondents submitted on the principles which govern the grant of an order of stay pending appeal, stating that the principles centre around substantial loss resulting to the applicant unless the order is made; making the application without unreasonable delay; and provision of security for the due performance of such decree or order as may ultimately be binding upon the applicant. They submitted that the application had been served on all the parties, and argued that the judgement, having been delivered via CTS, they were not in a position to seek for stay of execution at the time the judgement was delivered. They argued that the application was filed without delay, a notice of appeal had been filed pursuant to section 9 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya. 6. The 1st respondent cited *James Wangalwa & Another vs. Agnes Naliaka* *Cheseto* [2012] eKLR, on the principles governing applications for a stay of execution pending appeal, under Order 42 Rule 6 of the Civil Procedure Rules. He argued that no prejudice would be suffered, if stay of execution is granted. The 2nd and 3rd respondents supported the application, although they had not filed any responses to the application. It was pointed out that the 3rd respondent had already forwarded its investigation file to the 1st respondent. The 6th respondent chose not to participate in the hearing of the application, for it did not touch on it. 7. The applicants argued that the application is a tactical attempt to further delay criminal accountability, and shield officers from statutory oversight. 8. Order 42 Rule 6(1)(2) of the Civil Procedure Rules is the operative procedural law, which lays down the conditions for the grant of stay, before the High Court; while Rule 5(2)(b) of the Court of Appeal Rules of 2022 is the operative law, which lays down conditions for the grant of stay before that court. Order 42 Rule 6(1) of the Civil Procedure Rules provides that; “*No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree*…” 9. The principles that guide the court in determining whether to grant stay of execution pending appeal, under Order 42 Rule 6(2) of the Civil Procedure Rules, are stated in such cases as *Trishcon Construction Co. Ltd vs. Avtar Singh Bahra* [2017] eKLR [2017] KEHC 1478 (KLR) and *Coast Raha Limited vs. HY minor suing through NZA & another* [2023] KEHC 21659 (KLR). Those clearly spelt out in Order 42 rule 6(2) are identified as 3, being substantial loss, application filed without unreasonable delay and provision of security. Proof that an appeal has been filed, even if it is only a notice of appeal, is touted as the fourth. *Butt vs. Rent Restriction Tribunal* [1979] eKLR [1979] KECA 22 (KLR) sets out what is required, for the purpose of stay under the Court of Appeal Rules. The court should satisfy itself, from the material presented by the parties, that the application has been made without unreasonable delay, the applicant has an arguable appeal with a probability of success, the applicant shall suffer substantial loss if the stay is not granted; and the security for due performance of the decree has been provided. 10. On substantial loss, it was stated, in *Standard Assurance Co. Ltd vs. Alfred Mumea Komu* [2008] eKLRand *Gicharu vs. Waweru* [2025] KEHC 2565 (KLR), that the burden of proving substantial loss lies with the appellant, who should provide evidence of the loss that he would be exposed to. On the arguability of the appeal, it was said, in *Butt vs. Rent Restriction Tribunal* [1979] eKLR [1979] KECA 22 (KLR), that the threshold for an arguable appeal is not whether the appeal will succeed but whether it raises a *bona fide* issue that ought to be fully ventilated before the appellate court; and in *Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 others* [2013] eKLR [2013] KECA 378 (KLR), that an arguable appeal must not necessarily succeed, but it must be one which ought to be argued fully before the court, that is one that is not frivolous. 11. I am not persuaded that the 4th and 5th respondents have laid before the court evidence that they will suffer substantial loss, unless the said order of stay is granted. The appellant has not provided any evidence to show that they stand to suffer substantial loss, and there is no justification for keeping the applicants from enjoying the fruits of the judgement. 12. The grant of a stay, by the High Court, is pegged on the existence of an appeal before the Court of Appeal. Where no appeal has actually been filed, by way of a memorandum of appeal being lodged at the registry at that court, evidence of a filing of a notice of appeal at the High Court would suffice. 2 notices of appeal have been lodged herein, by the 1st respondent, dated 16th July 2026, on one hand, and by the 4th and 5th respondents, dated 10th July 2026, on the other. There is also a copy of the memorandum of appeal, dated 17th July 2026, lodged at the Court of Appeal, on 17th July 2026, setting out the grounds of appeal. 13. In the ordinary course of business, a trial court is ill-suited to assess the merits or otherwise of an intended appeal, as it amounts to sitting on appeal against its own decision. It would be more prudent to seek stay at the court where the appeal is pending, which would be the court better placed to assess arguability of the appeal. Indeed, under Order 42 Rule 6(2) Civil Procedure Rules, whether an appeal is arguable or has chances of success, is not one of the considerations, for there are only 3 considerations there, substantial loss reasonableness of delay and provision of security, but the courts have added proof of filing of an appeal. 14. The matter of consideration of an arguable appeal is raised in the Court of Appeal Rules, and the cases which have mentioned it, as a principle, such as *Butt vs. Rent Restriction Tribunal* [1979] eKLR [1979] KECA 22 (KLR), *Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 others* [2013] eKLR [2013] KECA 378 (KLR) and *Kenya Industrial Estate Limited & another vs. Matilda Tenge Mwachia* [2021] eKLR [2021] KECA 1012 (KLR), are from that court, with respect to stay sought at that court. 15. I, accordingly, decline to grant the prayers sought, of stay of execution pending the hearing and disposal of the appeal, for the reasons given above. The motion, dated 17th July 2026, is hereby dismissed. Each party shall bear its own costs. Orders accordingly. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 31ST DAY OF JULY 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Ms. L Wafula, Legal Researcher.** **Advocates** **Mr. Ndegwa, instructed by SNW & Company, Advocates for the applicant.** **Mr. Mwandawiro, instructed by the Director of Public Prosecutions, for the 1st respondent.** **Ms. Gathenya, instructed by the Attorney General, for the 2nd and 3rd respondents.** **Mr. Muturi, instructed by GK Muturi & Company, Advocates for the 4th and 5th respondents.** **Ms. Korir, Advocate, for the 6th respondent.**