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Court of AppealPartially AllowedCivil Application No. Nai. E324 of 2024 (motion dated 25th June 2024)

Western Airways Limited & another v Nordic Aviation Capital (Civil Application E319 of 2024) [2025] KECA 765 (KLR)

Court of Appeal of Kenya
9 May 2025
895 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused a US$1 million judgment, but only on condition the appellants file their long-delayed appeal within 45 days.

What this practically means

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Executive summary

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By a motion dated 25th June 2024 under rule 5(2)(b) of the Court of Appeal Rules, Western Airways Ltd. and Douglas Odhiambo sought stay of execution of a High Court judgment (Tuiyott, J., dated 11th May 2018) awarding Nordic Aviation Capital USD 1,034,122.47 plus interest for breach of an Aircraft Lease Agreement, with the 2nd applicant liable under a personal guarantee. The applicants had filed a notice of appeal in May 2018 but, nearly seven years later, had not filed the appeal; the application was prompted by the respondent's February 2024 attempt to commit the 2nd applicant to civil jail. The applicants argued the appeal was arguable - questioning the guarantor's continued liability after lease amendments made without him, the disregard of his separate legal personality, the denial of equity or set-off upon repossession, and failure to deduct USD 80,000 paid - and that it would be nugatory because the respondent has no assets or operations in Kenya. The respondent, through a replying affidavit sworn by its own advocate on record, filed neither submissions nor appearance at the hearing. The Court of Appeal (Wanjiru Karanja, K. M'inoti and P. Nyamweya, JJ.A) found both rule 5(2)(b) considerations satisfied, noting that even one bona fide arguable issue suffices and that the claim of no Kenyan assets was uncontroverted. However, mindful of the applicants' inordinate delay, the court exercised its power to impose just conditions, granting a conditional stay requiring the record of appeal to be filed and served within 45 days, failing which the motion stands dismissed. Costs of the application were made to abide the outcome 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 the appeal will be rendered nugatory unless stay of execution is granted
  3. 3.What conditions, if any, should attach to the grant of stay given the applicants' inordinate delay in filing the appeal

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes; the grounds raised, including continued liability under a personal guarantee after amendments to the lease without the guarantor and entitlement to set-off, were bona fide issues fit for argument on appeal.

Reasoning

The court reviewed the intended grounds of appeal concerning the 2nd applicant's personal guarantee, separate legal personality, equity over the aircraft, set-off, and the unaccounted USD 80,000 payment. It applied the settled test that a single bona fide arguable point suffices and the appeal need not ultimately succeed.

p. 2
02

Whether the appeal would be rendered nugatory if stay is denied

Holding

Yes; the respondent's lack of operations or assets in Kenya was uncontroverted, and the potential committal of the 2nd applicant to civil jail could not be undone.

Reasoning

The applicants' uncontroverted evidence that the respondent has no operations or assets in Kenya meant recovery of the decretal amount after a successful appeal would be virtually impossible. Commitment of the 2nd applicant to civil jail was likewise an irreversible eventuality. Both rule 5(2)(b) considerations were therefore satisfied.

p. 2
03

Whether stay should be granted without conditions despite the applicants' delay of almost seven years in filing the appeal

Holding

No; the court exercised its discretion under rule 5(2)(b) to grant a conditional stay requiring the record of appeal to be filed and served within 45 days, failing which the application stands dismissed.

Reasoning

Although both limbs of the rule 5(2)(b) test were met, the court noted the applicants had taken almost seven years since the 2018 judgment without filing their appeal, having been stirred only by execution attempts in February 2024. The rule empowers the court to impose just conditions, and it used that power to compel diligent prosecution of the appeal.

p. 2

Legal principles established

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  • Under rule 5(2)(b) an applicant must satisfy both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted, and even one bona fide arguable issue suffices
  • Under rule 5(2)(b) the Court may grant stay on such conditions as it deems just, including conditions addressing inordinate delay in filing the appeal

Court orders

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  1. 1.Conditional stay of execution of the High Court judgment and decree dated 11th May 2018 granted on condition that the applicants file and serve the record of appeal within 45 days from the date of the ruling, failing which the notice of motion dated 25th June 2024 shall stand dismissed
  2. 2.Costs of the application to abide the outcome of the intended appeal

The bench

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

majority
majority
majority
On appeal from
High Court
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Unconditional stay of execution

Stay granted only on condition that the record of appeal be filed and served within 45 days due to the applicants' inordinate delay in filing the appeal

p. 2

Costs

Costs of this application shall abide the outcome of the intended appeal.

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.

Accordingly, we shall grant the applicants a conditional stay of execution to the efiect that they must file and serve the record of appeal within Forty-Five (45) days from the date of this ruling, failing which the notice of motion dated 25th June 2024 shall stand dismissed. Costs of this application shall abide the outcome of the intended appeal. It is so ordered.
p. 2Final orders - conditional stay of execution
we find that the applicants have satisfied both considerations for grant of an order of stay of execution under rule 5(2) (b)
p. 2Rule 5(2)(b) twin test satisfied
even one bona fide issue will sufice and that an arguable appeal does not necessarily have to succeed on appeal
p. 2Arguability standard

Issues in the judgment

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minor

The court notes the respondent's deponent was its own advocate on record, who ought not to depose to contentious matters; recorded here as a procedural irregularity flagged by the court itself

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, "Western Airways Limited & another v Nordic Aviation Capital (Civil Application E319 of 2024) [2025] KECA 765 (KLR)", Case Analysis (2025). Civil Application No. Nai. E324 of 2024 (motion dated 25th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/765/eng@2025-05-09

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