Kikambala Housing Estate Limited v Bank of Africa Limited & 25 others; Bank of Africa Limited (Interested Party) (Civil Application E026 & E029 of 2024 (Consolidated)) [2025] KECA 938 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause an ELC judgment because the company failed to prove the appeal would be worthless if execution proceeded.
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 under rule 5(2)(b)
- 2.Whether the appeal would be rendered nugatory if stay of execution of the ELC judgment and ruling is not granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable, the dominant ground being whether the trial court's orders flowed from a Partial Settlement Agreement to which the applicant alleged it was not a party.
The court examined the draft memorandum of appeal and submissions and identified the central question as whether the trial court's orders were founded on the PSA to which the applicant claimed not to have been a party. It held that this constituted a single bona fide ground worthy of consideration, without delving into the merits so as not to embarrass the hearing of the main appeal.
Whether the appeal would be rendered nugatory absent stay
The applicant failed to demonstrate that the appeal would be rendered nugatory, particularly as the 1st respondents had paid their purchase prices and the Bank's impecuniosity was not proved.
The court noted the purchasers had fulfilled their bargain and could not be hindered from obtaining titles after partial discharge of the charge. On the claim that the Bank could not repay, the court applied the Wasike principle placing the evidential burden on the applicant to prove impecuniosity, holding that a reputable financial institution is presumed able to compensate absent demonstration otherwise.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory absent stay; the twin principles must be satisfied conjunctively, not in isolation.
- A single bona fide arguable ground suffices for the arguability limb of rule 5(2)(b).
- The burden of proving a respondent's impecunity for nugatory-planet purposes lies on the applicant, shifting to the respondent once a reasonable fear of inability to repay is shown.
Court orders
#- 1.The Notices of Motion in Civil Application Nos. E029 of 2024 and E026 of 2024 dated 23rd October 2024 and 14th September 2024 respectively are dismissed
- 2.Costs of the applications to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court, Malindi
- Malindi ELCC/207/2015 (and related Malindi ELCC No. 355 of 2016)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
- Consolidated with
- Civil Application No. E026 of 2024
Relief refused
#Interim orders for stay of execution of the ELC judgment of 18th July 2024 and ruling of 30th August 2024 pending the intended appeal
The intended appeal was arguable, but the twin rule 5(2)(b) principles must be satisfied conjunctively and the applicant failed to demonstrate that the appeal would be rendered nugatory without stay
Costs
The applications were 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.
Accordingly, we find that the Notices of Motion in Civil Application Nos. E029 of 2024 and E026 of 2024 dated 23rd October 2024 and 14th September 2024 respectively are devoid of merit. They are hereby dismissed with costs to the respondents.
Considering that the twin principles under rule 5(2)(b) must be satisfied conjunctively and not in isolation, it follows that we decline to grant the stay orders as prayed.
The first issue for consideration is whether the intended appeal is arguable. This court has often stated that an arguable ground is not one which must succeed but should be one that is not frivolous; a single arguable ground of appeal would sufice to meet the threshold that an intended appeal is arguable.
Once the applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has to satisfy the decree should the appeal succeed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kikambala Housing Estate Limited v Bank of Africa Limited & 25 others; Bank of Africa Limited (Interested Party) (Civil Application E026 & E029 of 2024 (Consolidated)) [2025] KECA 938 (KLR)", Case Analysis (2025). Civil Application No. E029 of 2024 (consolidated with Civil Application No. E026 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/938/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.