I keep a private rule of thumb for reading insolvency files: watch the litigant, not just the liquidation. Estates close. Litigants don’t, not on their own schedule anyway. I’ve been following and mapping Cytonn’s liquidation for two years now. The name behind almost every one of its nearly thirty court filings, 29 as of the last count Daily Nation published in October 2024, is the same name that shows up on the Britam departure litigation from 2014, the 2023 Supreme Court judgment that rewrote the scope of judicial review in Kenya, and the Capital Markets Authority petition Justice Namisi threw out on exhaustion grounds in September 2025. The name is Edwin Harold Dayan Dande. I’ll come back to him, because his pattern is the clearest illustration of what the Supreme Court just did in Cytonn, and because it says something novel about how the arguability threshold behaves once a litigant has learned to use it as effectively as Dande has.
Here’s the analogy of that elasticity. Zeno of Elea built a paradox that has outlived every attempt to laugh it off. Achilles, the fastest runner in the Iliad, races a tortoise that gets a head start. By the time Achilles reaches the tortoise’s starting point, the tortoise has moved on, however slightly. By the time he closes that new gap, it has moved again. The distance keeps halving. It never reaches zero. Mathematicians have spent two and a half thousand years explaining, patiently, why this is a trick of infinite division rather than a fact about racing. While public law enthusiasts will remember the name Edwin Dande best for heralding the duality now built into judicial review law in Kenya, insolvency practitioners do not need the explanation. Sitting at the intersection of public and commercial law, I have watched the trick performed live, in liquidation files that behave exactly like Zeno’s racetrack: the finish line is fixed, the distance to it keeps closing, and something always intervenes to halve what remains. I first met the paradox properly, and not just its reputation, because a professor once sent my project back with a single pencilled line in the margin: read Plato’s Parmenides before you use the phrase infinite regress so loosely again.
It’s a standing joke in the restructuring circles that insolvency is the one field of law where finality is a rumour rather than an event. Give a sufficiently resourced litigant a fairly large estate, and the appellate ladder offers an infinite number of half steps between judgment and execution, each one couched as a fresh grievance rather than a repeat of the old one. Dande’s Cytonn litigation is the closest thing I’ve seen to that joke playing out in real time. But what makes Dande worth naming rather than analysing as an anonymous pattern is that one thread of his litigation has left an indelible jurisprudential mark independent of how Cytonn itself turns out. Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022, consolidated) [2023] KESC 40 arose from his challenge to the criminal investigation opened against Cytonn’s founders. It produced a judgment I picked apart at the time for the Oxford Human Rights Hub, and it’s the case public law students will keep citing, since it splits judicial review into two tracks: a merit review where the claim is brought under the Constitution, and the older, process-only review under Order 53 of the Civil Procedure Rules where it is not. That duality is Dande’s most durable legacy, genuine, citable public law doctrine that other courts have already put to work: the High Court relied on it four months later in Republic v Public Procurement Administrative Review Board & another, and petitioners were still invoking it before the Supreme Court itself in Standard Chartered Bank Kenya Limited & 10 others v Retirement Benefits Appeal Tribunal & 3 others [2025] KESC 55, two years on. It is a doctrine that exists because a litigant kept pushing a personal grievance up the court structure long after most people would have let it lie. Dande is a lesson in motion on how a private dispute in the hands of a sufficiently resourced litigant can generate a citation trail that outlives the dispute itself, which is what I’ll be watching for with Cytonn: whether it becomes that kind of case, cited for something unrelated to the liquidation years from now, or simply the thirtieth or so entry in a file that eventually closes anyway, the way most of them do.
With that context in place, here’s the ruling itself now.
Yesterday, Ken Baraka laid out the doctrine behind Article 163(4)(a)’s arguability threshold; today, Zeno’s arrow finally lands, in a courtroom where Achilles keeps almost catching the tortoise. Cytonn Investment Partners Four LLP & 6 others v Official Receiver; CHYS Creditors’ Committee & another (Proposed Interested Parties) (Petition (Application) E001 of 2026) [2026] KESC 51, delivered on 3rd July 2026 by Mwilu DCJ & VP, Wanjala, Ndung’u, Lenaola and Ouko SCJJ, disposes of three notices of motion and a preliminary objection together [1]. The seven appellants are a cluster of LLPs linked to Cytonn: Cytonn Investment Partners Four, Five, Ten, Eleven and Sixteen, Epazec Company, and Cytonn Integrated Project, appealing from the Court of Appeal’s judgment of 21st November 2025 in Musembi & 351 others v Official Receiver & 2 others (Civil Appeal E927 of 2024, consolidated with E928, E929, E930, E931, E932, E934 of 2024 and E032 of 2025), one of six judgment files the Court of Appeal (Kiage, Jamila Mohammed & Odunga JJA) delivered that day across the wider CHYS/CPN liquidation. The properties at stake are named individually in the ruling: the Alma (Kiambaa/Ruaka/6667), Mystic Plains/Newtown, Riverrun, Taraji, The Ridge, Applewood, and three Kilimani parcels [2(ii)], which tells you this is a fight over specific real estate, not an abstract argument. The Official Receiver moved to dispose of the linked assets by tender; the Supreme Court has now halted that, admitted the CHYS Creditors’ Committee and SBM Bank Kenya Limited as interested parties, and dismissed the Official Receiver’s preliminary objection to its own jurisdiction [15].
What the ruling holds
The Court’s jurisdictional reasoning anchors on two of its own precedents, both named in the ruling itself. Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another (Petition 3 of 2012) [2012] KESC 9 sets the baseline: an appeal under Article 163(4)(a) must originate from a case where the contested issues revolved around interpreting or applying the Constitution, and the appellant must be challenging the Court of Appeal’s own constitutional reasoning, not relabelling an ordinary dispute [14(ii)]. Munya v Kithinji & 2 Others [2014] KESC 38 refines that further: the Court of Appeal’s reasoning must have “taken a trajectory of constitutional interpretation or application,” and the constitutional contestation must transcend the court hierarchy [14(iii)].
Applying that test, the Court finds two pending constitutional issues in the appellants’ pleadings: whether vesting orders issued under sections 444 and 445 of the Insolvency Act can lawfully limit the Article 40 property rights of solvent entities that are not themselves under insolvency, merely because of a relationship between lender and borrower with CHYS or CPN [14(iv)]; and whether the High Court breached Article 50(1) by acknowledging bona fide purchasers’ rights in principle but delegating the actual determination of those rights to the Official Receiver rather than deciding them itself [14(vi)]. A second appellant group before the Court of Appeal, Charles K. Wambu & 6 Others, separately argued Article 36 and Article 47 violations over the denial of a creditors’ meeting on the proposed debt settlement plan, and the Court of Appeal’s own framing of its issues for determination included whether bona fide purchasers’ Article 40 rights, and the appellants’ Article 50 fair hearing rights, had been violated [14(vii)]. On that basis the Supreme Court concludes the Court of Appeal “engaged, albeit partly, in the interpretation and application of the Constitution... notwithstanding that the appeal was ultimately found to be lacking in merit” [14(vii)].
What I find most useful here, more valuable than anything in the ruling’s own headnote, is paragraph 14(viii), where the Court taps into its own reasoning in Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others [2023] KESC 14: whether a dispute qualifies as a constitutional question is “readily determinable for some of them and almost improbable to distinguish constitutional and other underlying issues in others,” and is therefore left to case by case evaluation rather than a fixed test. That’s an honest admission that the Nduttu threshold does not apply itself, and it’s the closest the ruling comes to explaining why a commercial insolvency dispute clears it here. It just doesn’t say much more than that.
The unaddressed doctrinal tension
Insolvency practitioners, start here, because this is where the arguability critique that matters to you begins. The Court is explicit, at paragraph 14(xii), that arguability doesn’t require it to weigh the merits, only to confirm an argument exists: “The Court does not concern itself as to the merit but only as to the existence of the argument, which the appellants have satisfied.” That’s a correct application of the Munya stay principles. They come from the Court’s earlier interlocutory ruling on this same dispute, Application 5 of 2014; 2014 KESC 30, rather than the substantive judgment cited above [14(xi)], and I don’t fault the Court for applying its own settled test correctly. But it’s worth looking again at what that test produces on this record. The High Court and the Court of Appeal both considered the bona fide purchaser question, the debt settlement plan question, and the solvent SPV question already; the Court of Appeal’s own judgment, according to this ruling, framed those exact questions as issues and answered them against the appellants [14(vii)]. What’s “arguable” for Article 163(4)(a) purposes, on this framing, is functionally: were these issues raised and answered below? Not whether they were answered wrongly in a way that plausibly implicates the Constitution beyond how they were already litigated as ordinary insolvency law. I think that’s a lower bar than the profession generally assumes Nduttu and Munya set, and Cytonn is a clear illustration of it.
It’s worth juxtaposing that against a case where the threshold was met. In Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another, SC Petition No. 3 of 2012; [2012] eKLR, the Court struck down the challenge on the basis that the appellants had done nothing more than assert, without demonstrating, that a constitutional question was in play; a bare label, the Court held, was not enough to bring the appeal within Article 163(4)(a). That’s the discipline the threshold is meant to enforce. What distinguishes Cytonn is not that the appellants avoided that trap through any particular skill; it’s that the Court of Appeal’s own judgment happened to frame the same questions the appellants were now raising, which let them point to the lower court’s own language rather than manufacture the constitutional angle themselves. None of that means the Court got the doctrine wrong here, or that Dande is gaming a system that should have caught him. It means the doctrine, correctly applied, benefits whichever litigant manages to get a lower court to engage with constitutional language on the way up, even in a judgment that ultimately rules against them on the merits. If that’s the trajectory of the precedent, I submit that the fix isn’t blaming resourceful litigants for finding it as Dande did. It’s for the Court to ask, at the threshold stage, not merely whether the Court of Appeal touched on Article 40 or Article 50 language, but whether doing so decided anything a straightforward insolvency appeal would not already have decided on its own terms.
On the nugatory limb, the Court accepts the appellants’ submission that the properties could be valued, sold, and transferred to third parties absent a stay, and finds the resulting harm would likely be irreversible, citing Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others [2024] KESC 47 [14(xiii) and (xiv)]. On public interest, it weighs the more than 3,000 creditors CHYS/CPN was liquidated to protect against the bona fide purchasers whose title remains unresolved, and comes down, at least for now, on the side of freezing everything pending the substantive appeal [14(xv) and (xvi)].
None of this is to say that the appellants are wrong on the constitutional merits; the Court hasn’t decided that yet, and says so. It means that on this record, a comprehensively reasoned Court of Appeal judgment spanning multiple files didn’t insulate against a fresh Article 163(4)(a) petition, once the petition was pleaded with enough particularity around Articles 40, 36, 47 and 50. If I were advising a receiver, liquidator, or secured creditor in a similar insolvency involving multiple parties, I’d highlight that as the novel signal from this ruling, not the property freeze itself.
Practical implications
The immediate effect is that the Official Receiver’s tender process is stopped, and the CHYS Creditors’ Committee, representing more than 3,000 creditors, now litigates as an interested party in a forum one level above where its interests were last vindicated, alongside SBM Bank Kenya Limited, joined as a secured creditor over the Alma property [15(iii) and (iv)]. For those 3,000-plus creditors, that freeze portends far-reaching ramifications. Every month the tender process stays in limbo is a month recovery does not happen, added onto a liquidation that has already been in motion for years and that the arguability threshold, correctly applied, has just extended again. My drafting advice to counsel advising creditors’ committees or receivers elsewhere: anticipate the Article 163(4)(a) route earlier in the appellate sequence rather than taking a Court of Appeal dismissal, however comprehensive, as final. Build the Nduttu central argument into your Court of Appeal submissions defensively, and don’t assume that a finding on bona fide purchaser status or a debt settlement plan, however thoroughly reasoned, is safe from being reframed in Article 40 or Article 50 language at the next appellate level. This ruling suggests that recasting doesn’t need to be very persuasive to clear the arguability threshold, only present.
Zeno’s tortoise was never going to win the race; the paradox only ever described how the race gets narrated, not how it ends. Whether Cytonn proves the same- a procedurally significant halving that still resolves in the Official Receiver’s favour once the substantive appeal is heard, or marks a genuine widening of what counts as an arguable Article 40 question in liquidation disputes- is what the Mwango Law Review will be watching for in the substantive appeal.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.