The Court of Appeal has dismissed an application to allow the Assets Recovery Agency (ARA) to continue holding funds it had confiscated from former Nairobi Governor Mike Mbuvi Sonko when he faced corruption charges against him.
The court declined to grant a stay (suspend) of execution of a High Court order directing the anit-graft agency to release over Sh30million it seized from the ex-county boss.
In a ruling, the judges said the court lacked jurisdiction to stay a “negative order” issued by the High Court.
The agency had filed an application seeking to suspend a High Court decision delivered by Justice Nixon Sifuna on October 1 2025, who dismissed ARA’s case seeking to forfeit to the State funds recovered from Mr Sonko claiming they were proceeds of crime.
The High Court had dismissed ARA’s petition, ruling that the evidence presented was insufficient to prove that the funds in Mr Sonko’s accounts were proceeds of crime.
Justice Sifuna cited selective investigation, lack of witness statements, and unverified property sale documents, noting the agency had failed to meet its burden of proof.
In their decision of March 4, 2026 a three-judge bench, comprising Justices Kathurima M’inoti, Chacha Mwita, and Bryam Ongaya, they ruled that there was nothing that could be stayed under Rule 5(2)(b) of the Court of Appeal Rules.
Former Nairobi Governor Mike Mbuvi Sonko during the hearing of a graft case against him at the Milimani Law Courts in Nairobi on February 4, 2026.
Photo credit: Billy Ogada | Nation Media Group
Justice M’inoti, who presided over the bench, sought clarification from ARA’s counsel on what exactly the agency was seeking to suspend.
“What you are seeking is a stay of execution based on the decision of Justice Sifuna,” he observed.
“In the judgment, in the pertinent part, he says, ‘In consequence, this suit fails and is hereby dismissed with costs.’ You are aware of consistent decisions of this Court that it cannot issue an order of stay of execution in respect of a dismissal.”
He emphasised that the appellate court has, in about ten previous decisions, maintained that it cannot stay a negative order — one that does not command a party to do or refrain from doing anything, but simply dismisses a claim.
Mr Sonko’s lawyer, pressed hard by the bench, conceded that he had made similar submissions but acknowledged the court’s established jurisprudence.
However, counsel for the ARA Esther Muchiri urged the court to consider Section 97 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), arguing that once an appeal is filed, preservation orders automatically subsist pending its determination.
She maintained that the funds in question, preserved since February 2020, should remain untouched as they are the subject of the main appeal. But Justice M’inoti was quick to point out the contradiction.
“If it is automatic under Section 97, then your application is not necessary,” he said, reiterating that the court was only dealing with an application for stay under Rule 5(2)(b), not an interpretive question on the statute.
Former Nairobi Governor Mike Mbuvi Sonko at the Milimani Law Courts in Nairobi on February 7, 2024.
Photo credit: Wilfred Nyangaresi | Nation Media Group
“We can only stay the decision of the superior court. But that decision dismissed your suit. So what is it you want us to stay?” said Justice Mwita.
The judges gave ARA the option of withdrawing the application or having it formally dismissed with costs. After brief consultations and noting the court’s position, Ms Muchiri opted to withdraw the application.
Mr Sonko’s lawyer Harrisson Kinyanjui indicated he had no objection to the withdrawal but also sought costs, a request that was declined.
The only outstanding issue, the judges said, was on costs of the application, with a ruling set for March 13, 2026.
