Executive Super Rides Limited & another v NCBA Bank of Kenya PLC; Regent Auctioneers (Interested Party) (Civil Appeal (Application) E900 of 2024) [2025] KECA 1171 (KLR)
The bottom line
#Kenya's Court of Appeal can freeze property transfers pending appeal, even when Rule 5(2)(b) doesn't explicitly allow it, using its inherent powers.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant status quo orders under Rule 5(2)(b)
The Court may grant status quo orders in exercise of its inherent jurisdiction under Rule 1(2), notwithstanding that Rule 5(2)(b) nominally covers injunction, stay of execution and stay of proceedings.
The Court noted that although Rule 5(2)(b) confines relief to injunctions and stays, prior decisions (Total Kenya Ltd v KRA; Samiyan Kaur Devinder Singh v Speedway Investments Ltd) held that this does not preclude other conservatory orders under the Court's inherent power to make orders necessary for the ends of justice or to prevent abuse of process. The Court expressly adopted that position.
Arguability of the intended appeal
The appeal was arguable because it raised bona fide issues on the propriety of the High Court's interlocutory findings and the validity of the alleged auction.
Applying Kenya Tea Growers Association v Kenya Planters Agricultural Workers Union and Kenya Railways Corporation v Ederman Properties Ltd, the Court held that an appeal need not be certain to succeed nor raise multiple points; one bona fide issue suffices. The applicants' challenge to the interlocutory findings and the legality of the auction was neither frivolous nor idle.
Nugatory-ness of the intended appeal
The nugatory limb was satisfied: the suit property could be transferred to an unidentified third party and possession lost, rendering any success on appeal irreversible and inadequately compensable in damages.
The Court noted the sale allegedly occurred during the pendency of court orders prohibiting it, that the applicants demonstrated concrete prejudice to their business and possession, and that the respondent relied only on prejudice to an unidentified third-party purchaser who had not been heard. Preservation of the suit property balanced the parties' interests pending appeal.
Legal principles established
#- A Rule 5(2)(b) applicant must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory absent the order sought.
- The Court of Appeal has inherent jurisdiction under Rule 1(2), notwithstanding the confines of Rule 5(2)(b), to grant conservatory orders maintaining the status quo pending appeal.
- An appeal is 'arguable' if it raises a bona fide issue worthy of consideration; a single arguable point suffices.
- An intended appeal is rendered nugatory where the effect of not granting a stay is irreversible, or where damages will not reasonably compensate the aggrieved party; the purpose of a stay is to preserve the subject matter of the appeal.
Court orders
#- 1.Pending the hearing and determination of Civil Appeal No. E900 of 2024, no interference with the applicants' possession of, or transfer of, the suit property LR Number 1/445 (Original No.1/432/1) situated along Ngong Road, Nairobi
- 2.Costs of the application dated 19th December 2024 to abide the outcome of the appeal
- On appeal from
- High Court
- HC COMM/E434 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022, together with Rule 1(2) (inherent power)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndirangu & 7 others v County Government of Nyeri (Civil Application E093 of 2025) [2025] KECA 2145 (KLR)[2025] KECA 2145 (KLR)28 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Executive Super Rides Limited & another v NCBA Bank of Kenya PLC; Regent Auctioneers (Interested Party) (Civil Appeal (Application) E900 of 2024) [2025] KECA 1171 (KLR)", Case Analysis (2025). Civil Application No. E021 of 2025 (arising from Civil Appeal No. E900 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1171/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.