Britam General Insurance Company (K) Limited v Rosslyn Suites Limited & another (Civil Application E627 of 2024) [2025] KECA 258 (KLR)
The bottom line
#The Court of Appeal paused Britam's Kshs 167 million bond payment—but only if Britam pays half the amount within 45 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if the stay is not granted and the appeal succeeds, the appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The Court found the applicant had raised arguable points warranting consideration, including the finding that the letter of objection was never received by the 1st respondent and the interpretation of the performance bond's conditions of recall.
Applying the settled rule 5(2)(b) test, the applicant needed only one bona fide issue worth consideration. The grounds raised - receipt of the letter of objection, the trial court's finding that the surety could not challenge the termination, and whether the bond required prior quantification of loss - were bona fide issues. No detailed analysis of each ground was set out, but the Court treated the grounds as sufficient under the first limb.
Whether the appeal would be rendered nugatory if stay is refused
The nugatory limb was assessed by weighing the hardship on both sides; the 1st respondent's demonstrated assets and capacity to repay defeated the applicant's claim that its means were unknown, yet the Court balanced the equities in granting a conditional stay.
The applicant's apprehension that the respondent's assets were unknown was dispelled by affidavit evidence of the respondent's projects valued at over Kshs 7 billion. Applying Kenafric Matches and African Safari Club, the Court weighed the hardships of both parties under the overriding objective and proportionality, resulting in a conditional stay rather than an outright refusal or unconditional grant.
Legal principles established
#- Relief under rule 5(2)(b) requires the applicant to demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; one arguable point suffices.
- An 'arguable' appeal need not be one that will succeed; a single bona fide issue worth consideration suffices.
- In assessing nugatory aspects, the Court weighs the conflicting claims and hardship of both parties in line with the overriding objective and proportionality.
Court orders
#- 1.Stay of execution of the judgment and decree of Sifuna, J delivered on 3rd October 2024 pending hearing and determination of the intended appeal, on condition that the applicant pays the 1st respondent Kshs 83,633,225.20 (half the bond amount) within 45 days from the date of the ruling
- 2.In default of the conditional payment, the application shall stand dismissed and the 1st respondent shall be at liberty to execute for the decretal sum
- 3.The applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. E503 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay of execution pending appeal)
Relief refused
#Unconditional stay of execution
Stay granted only on condition of payment of half the bond amount; failure to comply defaults the application
Costs
The applicant shall bear the costs of this application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the order that commends itself to us and which we hereby make is that there be a stay of execution of the judgment and decree of Sifuna, J delivered on 3rd October 2024 pending hearing and determination of the intended appeal to this Court, on condition that the applicant pays to the 1st respondent Kshs 83,633,225.20 being half of the bond amount within 45 days from the date of this ruling
Both limbs must be demonstrated before a party can obtain a relief under rule 5(2) (b)
The exercise of this jurisdiction is original, independent and discretionary
Issues in the judgment
#The application record lacks an explicit appeal number for the Court of Appeal application itself; only the notice of motion date (12th August 2024) and the underlying High Court suit (HCCC No. E503 of 2022) are given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Britam General Insurance Company (K) Limited v Rosslyn Suites Limited & another (Civil Application E627 of 2024) [2025] KECA 258 (KLR)", Case Analysis (2025). Civil Application (as stated: notice of motion dated 12th August 2024; suit referenced as arising from HCCC No. E503 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/258/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.