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Court of AppealDismissedCivil Application (Motion dated 26th July 2024) in Mombasa Court of Appeal Civil Appeal No. E152 of 2024

Julius v Motrex Limited & another (Civil Application E091 of 2024) [2025] KECA 895 (KLR)

Court of Appeal of Kenya
23 May 2025
2,306 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 collection of a Kshs. 4.9 million judgment, ruling that winning the 'arguable appeal' test alone is not enough to get a stay in Kenya.

What this practically means

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Executive summary

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The Applicant, Nduruhu Julius, moved the Court of Appeal at Mombasa under Rule 5(2)(b) of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act, seeking stay of execution of a High Court judgment of 9th February 2018 awarding Motrex Limited Kshs. 4,949,318.56 plus interest and costs following a road accident, pending the hearing of his appeal. The 1st Respondent opposed, arguing the application was res judicata in light of a consent order of 12th July 2019 and prior dismissed stay applications, that the Court could not override the consent, and that the Applicant had not established the requirements for stay. The Court framed three preliminary issues (res judicata, the Notice of Appeal, and jurisdiction in view of the consent) and held that its jurisdiction under Rule 5(2)(b) is original, independent and discretionary, and that at this interlocutory stage it is not concerned with the validity of the Notice of Appeal. On the merits, the Court found the appeal arguable - a single arguable point sufficing, and a complaint about failure to evaluate evidence being arguable - but held that the nugatory limb failed: the claim was a money decree and the 1st Respondent, describing itself as a large transnational logistics and transport business, stated it was capable of refunding the decretal amount. The Applicant having satisfied only one of the two conjunctive principles, the Court dismissed the motion with costs in the 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 application for stay of execution is res judicata in the face of the numerous applications for stay of execution filed before the High Court
  2. 2.Whether the Notice of Appeal filed is in respect of the judgment or the ruling on stay of execution by the High Court
  3. 3.Whether the Court has jurisdiction to entertain the application in light of the consent entered into by the parties
  4. 4.Whether the intended appeal is arguable
  5. 5.Whether the appeal, if successful, would be rendered nugatory unless stay is granted

Key legal issues

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01

Whether the application was res judicata given prior stay applications before the High Court

Holding

The Court did not sustain the res judicata objection; it held that its jurisdiction over a Rule 5(2)(b) application is original, independent and discretionary, and nothing prevented it from determining the application.

Reasoning

The Court observed that an application under Rule 5(2)(b) is a necessary intervention to preserve the subject matter of an appeal before its determination. Its exercise of jurisdiction in such applications is original, independent and discretionary, citing Githunguri v Jimba Credit Corporation Ltd (No 2). Having addressed the preliminary objections, the Court found nothing preventing it from determining the application on the merits of the twin Rule 5(2)(b) principles.

p. 4
02

Whether the intended appeal is arguable

Holding

The appeal is arguable - the grounds that unpleaded damages were awarded and that evidence was not evaluated are not trivial or idle.

Reasoning

The Applicant argued that the trial Judge awarded repair costs of Kshs. 4,949,318.56 which were never pleaded, and failed to evaluate the evidence on quantum. The Court held these issues are not trivial or idle and merit ventilation, adding that a complaint that the trial court failed to evaluate the evidence is by itself an arguable ground. A single arguable point suffices.

p. 4
03

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The nugatory limb fails: this is a money decree and the 1st Respondent stated it is capable of refunding the decretal amount.

Reasoning

The Applicant alleged the decretal sum was colossal and unrecoverable, and that the 1st Respondent's assets were unknown. The 1st Respondent described itself as a large transnational logistics and transport business capable of refunding the amount, which it considered not substantial. The Court found the Applicant produced no evidence to shift the burden and held that on a money decree with a capable refunding decree-holder, the appeal would not be rendered nugatory.

p. 4

Legal principles established

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  • Rule 5(2)(b) applications are interlocutory, preserving the subject matter of an appeal, not dispositive.
  • The twin principles for stay under Rule 5(2)(b) - an arguable appeal and nugatory-ness - must both be satisfied.
  • A single arguable point suffices to establish that an appeal is arguable.
  • A complaint that the trial court failed to evaluate the evidence is an arguable ground of appeal.
  • On a money decree, the applicant must show the decree-holder would be unable to refund; where the decree-holder asserts capacity to refund, the nugatory limb fails.
  • At a Rule 5(2)(b) stage the Court is not concerned with the validity of the Notice of Appeal; filing of a Notice of Appeal is a prerequisite but the rule does not require a valid one.
  • The Court of Appeal's jurisdiction over Rule 5(2)(b) applications is original, independent and discretionary, notwithstanding prior proceedings below.

Court orders

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  1. 1.The Applicant's Motion dated 26th July 2024 is dismissed
  2. 2.Costs in the appeal

The bench

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

majority
majority
On appeal from
High Court of Kenya
Judgment delivered 9th February 2018 (not stated in judgment)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022; sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Stay of execution of the High Court judgment of 9th February 2018 pending the hearing and determination of the appeal

The Applicant satisfied the arguability limb but failed to demonstrate that the appeal would be rendered nugatory, the 1st Respondent having stated it is capable of refunding the decretal amount; the twin principles are conjunctive

p. 4

Costs of the application

Costs were awarded to be in the appeal rather than to the Applicant

p. 4

Costs

Costs in the appeal. It is so Ordered.

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.

the purpose of applications brought under Rule 5(2)(b) of this Court's Rules, 2022 is to issue interlocutory orders and not to give any dispositive orders that might render the substantive appeal nugatory.
p. 3Nature of Rule 5(2)(b) applications
an applicant must demonstrate that the appeal or intended appeal is arguable; and that, unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
p. 4Twin principles for stay pending appeal
An arguable appeal need not raise a multiplicity of points, but a single arguable point is suficient to satisfy the first limb.
p. 4Standard of arguability
This being a money decree, and the 1st respondent having stated that it is capable of refunding the decretal amount in the event that the Applicant's intended appeal were to succeed, we find nothing to suggest that such an appeal, if successful, would be rendered nugatory absent the stay orders sought.
p. 4Nugatory limb and money decrees
Consequently, the Applicant's Motion dated 26th July 2024 fails and is hereby dismissed. Costs in the appeal.
p. 4Final orders

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, "Julius v Motrex Limited & another (Civil Application E091 of 2024) [2025] KECA 895 (KLR)", Case Analysis (2025). Civil Application (Motion dated 26th July 2024) in Mombasa Court of Appeal Civil Appeal No. E152 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/895/eng@2025-05-23

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