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Court of AppealDismissedCivil Appeal No. E605 of 2023 (Civil Application)

ABSA Bank Kenya PLC v Omusala & another (Civil Appeal (Application) E605 of 2023) [2025] KECA 388 (KLR)

Court of Appeal
28 February 2025
DMD. K. MusingaMNMumbi NgugiFTF. Tuiyott
837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a High Court case, confirming Kenyan courts only stay proceedings in exceptional circumstances.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal (Musinga, Ngugi and Tuiyott, JJA) delivered at Nairobi on 28th February 2025 in a civil application arising from Civil Appeal No. E605 of 2023. The applicant, a lender holding charges over a Kitisuru property securing facilities of approximately Kshs. 92.8 million, sought a stay of proceedings in the High Court suit (HCCC No. E802 of 2023) pending hearing of its appeal against a ruling of 12th June 2023 in which the trial court granted the respondents an injunction restraining the sale of the charged property, holding that the applicant should first have appointed a receiver under the debentures. The applicant also sought priority hearing of the appeal. The Court restated the settled principles: an applicant must show the appeal is arguable and that it will be rendered nugatory absent stay; and, for stay of proceedings specifically, exceptional circumstances must be shown because such stay interferes with a party's right to conduct litigation. Although arguability was not disputed, the Court held the appeal would not be rendered nugatory: if successful, the applicant would still retain its statutory power of sale should the debt remain unpaid, suffering only delay. No exceptional circumstances were demonstrated. The Court, emphasising that it must not pre-empt either the trial or the appeal, dismissed the application and ordered each party to bear its own costs. The decision below was not disturbed, as the substantive appeal remains pending.

Questions the Court framed

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

  1. 1.Whether the appeal is arguable
  2. 2.Whether the appeal, if successful, would be rendered nugatory unless the trial proceedings are stayed
  3. 3.Whether exceptional circumstances exist to warrant stay of proceedings before the trial court

Key legal issues

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01

Whether stay of proceedings pending appeal should be granted

Holding

The application fails on both limbs: the appeal would not be rendered nugatory, and no exceptional circumstances justify staying the trial proceedings.

Reasoning

The court restated the twin tests for stay: arguability and nugatory effect. While arguability was conceded, the court found that even if the appeal succeeds, the applicant retains its statutory power of sale if the debt remains unpaid, so the appeal would not be worthless. Further, stay of proceedings is a grave judicial action requiring exceptional circumstances, which were not demonstrated. The court was careful not to pre-empt either forum.

p. 2

Legal principles established

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  • An applicant for stay of proceedings pending appeal must demonstrate exceptional circumstances, because stay of proceedings interferes with a party's right to conduct litigation.
  • Where a successful appeal would merely delay, but not defeat, a party's statutory rights, the appeal is not rendered nugatory and stay should be refused.

Court orders

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  1. 1.The notice of motion dated 6th November 2024 seeking stay of proceedings is dismissed
  2. 2.Each party shall bear its own costs of the application

The bench

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

DM
majority
MN
majority
FT
majority
On appeal from
High Court
HCCC No. E082 of 2023 (also referred to as HCCC No. E802 of 2023)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over Civil Appeal No. E605 of 2023; interlocutory application under the Court's Rules for stay of proceedings pending appeal

Relief refused

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Stay of proceedings in HCCC No. E802 of 2023 pending determination of Civil Appeal No. E605 of 2023

The appeal, if successful, would not be rendered nugatory; and no exceptional circumstances were demonstrated to warrant stay of the trial proceedings

p. 2

Priority/expedited hearing of the appeal

The application was dismissed in its entirety as devoid of merit

p. 2

Costs

Each party shall bear its own costs of the 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.

an applicant has to demonstrate existence of exceptional circumstances which make stay of the lower court’s proceedings warranted, because stay of proceedings is a serious, grave, and fundamental judicial action that interferes with the right of a party to conduct litigation
p. 2Test for stay of proceedings pending appeal
The applicant will only have sufiered some delay in the exercise of its statutory right, but it cannot be argued that the appeal will become worthless, futile or invalid
p. 2Nugatory test - delay alone insufficient
We find this application devoid of merit and hereby dismiss it.
p. 2Disposition
Each party shall bear its own costs of the application.
p. 3Costs

Issues in the judgment

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minor

Inconsistent case number for the trial suit: the ruling opens referring to 'HCCC No. E802 of 2023' but the background refers to 'HCCC No. E082 of 2023'

minor

The parties are not named in the ruling; only descriptive roles (applicant, 1st and 2nd respondents) are used

minor

Typographical error in the judgment text ('sufiered' for 'suffered')

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, "ABSA Bank Kenya PLC v Omusala & another (Civil Appeal (Application) E605 of 2023) [2025] KECA 388 (KLR)", Case Analysis (2025). Civil Appeal No. E605 of 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/388/eng@2025-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.