Almer Farm Limited v Betty Rono (sued As The Executrix of The Estate of The Late David Rono)
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
#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
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Almer Farm Limited v Betty Rono (sued As The Executrix of The Estate of The Late David Rono)", 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.