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Court of AppealAllowedNot stated in judgment (Civil Application, Rule 5(2)(b))

Baharini Consultants Limited v Thuo (Suing as the Personal Representative and Administrator of the Estate of the Deceased Joram Thuo Wairegi) & another (Civil Application E131 of 2024) [2025] KECA 1140 (KLR)

Court of Appeal of Kenya
20 June 2025
1,139 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped an auction of a company's goods, confirming that non-parties facing execution can get protection pending appeal.

What this practically means

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Executive summary

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Baharini Consultants Limited, an objector in execution proceedings arising from a High Court decree in HCCC No. 39 of 2002 (consolidated with 121 of 2001), applied to the Court of Appeal at Nyeri under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2010 for an injunction restraining the 1st respondent and Vintage Auctioneers from attaching and selling its movable goods, including machines and motor vehicles, pending its intended appeal. Kizito Magare, J. had on 8th July 2024 dismissed the applicant's objection proceedings, holding that it had not furnished evidence of ownership of the proclaimed goods. The applicant contended that it had in fact produced business permits and motor vehicle log books showing ownership, and that its application had gone missing at the registry. The Court, composed of S. ole Kantai, J. Lesiit and Ali-Aroni, JA, applied the established Rule 5(2)(b) principles: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent relief. The Court found the draft grounds of appeal arguable and held that, because the applicant was not a party to the suit from which the decree arose, sale of its goods would render the appeal nugatory. The Court allowed the Motion in terms of prayers (a) and (b), issued the injunction, and ordered costs of the motion to be in the intended appeal. The decision is binding on the High Court pending the appeal. Judgment delivered at Nyeri on 20th June 2025.

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 intended appeal would be rendered nugatory absent an order of stay/injunction

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft grounds - that the Judge erred in finding there was no evidence of ownership when business permits and log books had been produced - are arguable.

Reasoning

The applicant intended to argue that the Judge overlooked documents (business permits and motor vehicle log books) produced with the application dated 20th September 2022 showing ownership of the proclaimed goods. The Court found these were not idle grounds but arguable, requiring full consideration at the hearing of the appeal, citing Mandavia v Sara Lee.

p. 3
02

Nugatory value of the intended appeal

Holding

The appeal would be rendered nugatory if the goods were sold in execution of a decree in a suit to which the applicant was not a party.

Reasoning

The applicant was a stranger to the suit from which the decree arose and filed objection proceedings claiming the proclaimed goods. Sale of the goods would place them beyond the applicant's reach and cause loss to its business, satisfying the second Rule 5(2)(b) principle.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that it will be rendered nugatory if stay or relief is not granted.
  • An arguable point on appeal is not one that must succeed; it is one requiring full consideration and determination by the Court.

Court orders

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  1. 1.Injunction restraining the 1st respondent including Vintage Auctioneers from attaching the applicant's movable goods including machines and motor vehicles, in terms of prayers (a) and (b) of the Motion
  2. 2.Costs of the motion to be in 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 of Kenya, Nyeri
HCCC No. 39 of 2002 (consolidated with 121 of 2001)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2010

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.

For an applicant to succeed he must show, firstly, that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that the same is not frivolous. Such an applicant must, in addition, show that the appeal will be rendered nugatory absent stay
p. 2Rule 5(2)(b) principles
The applicant has satisfied the principles for grant of a positive order in its favour. The Motion is allowed in terms of prayers (a) and (b) of the same.
p. 3Final orders - relief granted
Costs of the motion shall be in the intended appeal.
p. 3Costs order
an arguable point on appeal is not one that will succeed, it is one requiring full consideration and determination by the Court
p. 3Meaning of arguability

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the supporting application: paragraph 4 says the Notice of Motion is dated 20th September, 2022 while paragraph 9 refers to the application dated 20th September, 2024.

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, "Baharini Consultants Limited v Thuo (Suing as the Personal Representative and Administrator of the Estate of the Deceased Joram Thuo Wairegi) & another (Civil Application E131 of 2024) [2025] KECA 1140 (KLR)", Case Analysis (2025). Not stated in judgment (Civil Application, Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1140/eng@2025-06-20

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