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Court of AppealPartially AllowedCivil Application (as stated: notice of motion dated 12th August 2024; suit referenced as arising from HCCC No. E503 of 2022)

Britam General Insurance Company (K) Limited v Rosslyn Suites Limited & another (Civil Application E627 of 2024) [2025] KECA 258 (KLR)

Court of Appeal
21 February 2025
2,016 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Ngugi and Odunga, JJAA) on the applicant Britam General Insurance Company (K) Limited's notice of motion dated 12th August 2024 seeking stay of execution of the judgment of Sifuna, J delivered on 3rd October 2024 in HCCC No. E503 of 2022. The High Court had ordered Britam, the issuer of a performance security bond of Kshs 167,266,450.40 under a construction contract between Rosslyn Suites Limited (employer) and Rokoh (K) Construction Limited (contractor), to pay the bond sum with interest to the 1st respondent. Applying the settled rule 5(2)(b) test, the Court reiterated that an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent stay; a single arguable point suffices. The Court found the grounds raised - receipt of the contractor's letter of objection and the construction of the bond's recall conditions - arguable. On the nugatory limb, the 1st respondent's affidavit evidence of assets exceeding Kshs 7 billion dispelled the claim that its means were unknown, but the Court, invoking the overriding objective (sections 3A and 3B of the Appellate Jurisdiction Act) and proportionality, weighed the hardships on both sides. The application was allowed conditionally: stay was granted pending the intended appeal on condition that the applicant pays the 1st respondent Kshs 83,633,225.20 (half the bond amount) within 45 days; in default the application stands dismissed and the 1st respondent may execute. The applicant bears the costs of the application. The ruling does not disturb the High Court judgment; it preserves the subject matter of the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if the stay is not granted and the appeal succeeds, the appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

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.

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.The applicant shall bear the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
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

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Unconditional stay of execution

Stay granted only on condition of payment of half the bond amount; failure to comply defaults the application

p. 4

Costs

The applicant shall bear the costs of this application.

Quotable passages

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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
p. 4Final orders - conditional stay of execution
Both limbs must be demonstrated before a party can obtain a relief under rule 5(2) (b)
p. 3Dual test for rule 5(2)(b) relief
The exercise of this jurisdiction is original, independent and discretionary
p. 3Nature of rule 5(2)(b) jurisdiction

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.