Almer Farm Limited v Rono (Sued as the Executrix of the Estate of the Late David Rono) (Civil Application E016 of 2025) [2025] KECA 871 (KLR)
The bottom line
#The Court of Appeal refused to pause a Kitale land case, finding Almer Farm's appeal would not fail irreparably since it was pursuing both an appeal and a review.
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 intended appeal would be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Whether the intended appeal is arguable
The appeal is arguable; the applicant annexed a draft memorandum of appeal and needs to show only one arguable ground
The Court reiterated that arguability does not require the appeal to succeed, nor even that many grounds be arguable; a single arguable ground suffices. Since the applicant annexed its draft memorandum of appeal raising, among others, grounds on res judicata, section 79(1) of the Evidence Act and the right to a fair hearing, the first limb of the rule 5(2)(b) test was satisfied and the Court moved to the nugatory limb.
Whether the intended appeal would be rendered nugatory if stay of proceedings is not granted
The appeal would not be rendered nugatory; the application for stay of proceedings was dismissed
The applicant conceded there were no adverse orders in force, had obtained stay of execution from the trial court, and had a review application pending. The Court held that what is sought to be stayed must be reversible or not reasonably compensable in damages for the nugatory test to be met. It found the pursuit of both appeal and review against the same orders amounted to a fishing expedition, so the nugatory limb failed.
Legal principles established
#- An applicant for stay under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin conjunctive principles that the appeal is arguable and would be rendered nugatory if stay is not granted
- An arguable appeal does not mean one which must succeed, and the applicant need only demonstrate that a single ground is arguable
- A party who simultaneously pursues an appeal and a review against the same orders may be found to be on a fishing expedition, defeating a claim that the appeal would be rendered nugatory
Court orders
#- 1.The Notice of Motion dated 13th March 2025 seeking stay of proceedings in Kitale ELC Misc. App. No. E015 of 2024 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Kitale
- Kitale ELC Misc. App. No. E015 of 2024; Betty Rono v Almer Farm Limited
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in Kitale ELC Misc. App. No. E015 of 2024 pending the intended appeal
The appeal was found arguable, but not nugatory: there were no adverse orders in force, the trial court had already stayed execution of the orders of 5th February 2025, and the applicant was simultaneously pursuing an appeal and a review of the same orders, which the court viewed as a fishing expedition
Costs
Dismissed with no orders as to costs
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.
To succeed, an applicant must satisfy the following twin conjunctive principles in an application under rule 5 (2) (b) of this Court's rules: the appeal is arguable and would be rendered nugatory if stay is not granted.
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
It has pursued both an appeal and an application for review against the same orders and we are not persuaded that the intended appeal will be rendered nugatory in the circumstances.
It is hereby dismissed but with no orders as to costs.
Issues in the judgment
#The case number of this application before the Court of Appeal is not stated anywhere in the judgment; it is identified only by the Notice of Motion dated 13th March 2025
The supporting affidavit states there are no adverse orders, while the applicant simultaneously claims the appeal will be rendered nugatory without stay; the court noted but did not reconcile this tension explicitly
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Almer Farm Limited v Rono (Sued as the Executrix of the Estate of the Late David Rono) (Civil Application E016 of 2025) [2025] KECA 871 (KLR)", Case Analysis (2025). Civil Application No. E021 of 2025 (as inferred from the Motion dated 13th March 2025; number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/871/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.