Board of Management Kaimosi Teachers Training College v Pambazuka Builders Construction Company Limited & another (Civil Application E263 of 2024) [2025] KECA 662 (KLR)
The bottom line
#The Court of Appeal dismissed a college's bid to halt payment of a Kshs. 7 million construction judgment because it could not show the appeal would be worthless without a stay.
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 the appeal is likely to be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The appeal was held arguable, including on whether the court below failed to consider the applicant's counter claim dated 30th May 2023.
The court need only find a single bona fide arguable ground. The failure to consider the counterclaim was sufficient, without making definitive findings that would embarrass the bench hearing the main appeal. Arguability is a low threshold: an arguable appeal is not one that must succeed, only one deserving of full argument.
Whether the appeal would be rendered nugatory if stay is not granted
The applicant failed to prove the nugatory limb; the application was dismissed.
The court weighed the hardships of both sides. The applicant is already using the completed multi-purpose hall without paying the respondents, while the respondents risk losing the money spent on the tender if unable to recover the decretal sum. With roughly equal hardship and the applicant enjoying the fruits of the contract it has not paid for, the appeal could not be said to be rendered nugatory by execution.
Legal principles established
#- To succeed under Rule 5(2)(b), an applicant must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; both limbs must be demonstrated.
- An arguable appeal need not necessarily succeed; it is one that is not frivolous and deserves full argument, and the court must not make definitive findings of fact or law at the interlocutory stage.
- In assessing nugatory-ness, the court must weigh the conflicting claims and hardships of both parties and balance them fairly.
Court orders
#- 1.The Notice of Motion dated 13th November 2024 seeking stay of execution is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Vihiga HCCC No. E010 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Relief refused
#Stay of execution of the judgment and orders in Vihiga HCCC No. E010 of 2021 pending appeal
The applicant satisfied only the first limb (arguability) but failed to demonstrate that the appeal would be rendered nugatory without a stay, as it is already in use of the completed building
Costs
The application dated 13th November 2024 fails and is dismissed with costs to the respondents.
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 jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties and each case has to be determined on its merits.
Accordingly, the application dated 13th November 2024 fails and is dismissed with costs to the respondents.
Issues in the judgment
#The judgment does not state the full names/designations of the parties in the caption; the parties are identified only through the supporting affidavits, and the applicant's precise corporate name is not given.
The judgment does not state the date of the decision of the High Court appealed from, nor the appeal number before the Court of Appeal itself.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- CMM v TOL (Civil Application E237 of 2025) [2025] KECA 1481 (KLR)[2025] KECA 1481 (KLR)12 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Board of Management Kaimosi Teachers Training College v Pambazuka Builders Construction Company Limited & another (Civil Application E263 of 2024) [2025] KECA 662 (KLR)", Case Analysis (2025). Application dated 13th November 2024 in appeal from Vihiga HCCC No. E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/662/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.