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Court of AppealDismissedMombasa Civil Appeal No. E118 of 2024 (application dated 13th May 2024)

Koi v Hatimy Group Limited (Civil Application E055 of 2024) [2025] KECA 1811 (KLR)

Court of Appeal of Kenya
7 November 2025
2,089 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 dismissed Salim Said Koi's bid to block his eviction, finding any loss from eviction could be compensated with money damages.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA) dismissing a Notice of Motion dated 13th May 2024 by Salim Said Koi seeking a temporary injunction against eviction and a stay of execution of the judgment and decree of Kibunja, J delivered on 8th November 2023 in Mombasa ELC No. 69 of 2007 as consolidated with ELC No. 76 of 2007. In that judgment the trial court declared Hatimy Group Limited the registered proprietor of Plot Nos. 203, 204, 969 and 222/1/MN Kisauni, ordered the applicant and 13 other defendants to demolish buildings on the suit property, awarded general, punitive and aggravated damages for trespass, and issued a perpetual injunction. The application was brought under rule 5(2)(b) of the Court of Appeal Rules, 2022, invoking the twin test of arguability and nugatory effect. The respondent raised a preliminary objection that no valid record of appeal had been filed or served, rendering the appeal incompetent. The Court rejected the objection, holding that its jurisdiction rests on the notice of appeal, whose service and validity were admitted and unimpeached. The Court found the proposed grounds of appeal arguable, the threshold being that a single bona fide non-frivolous ground suffices. However, the nugatory limb failed: the applicant did not specify the area he occupied nor show that his loss on eviction could not be compensated by damages. The application was accordingly dismissed with costs in the appeal. The intended appeal in Mombasa Civil Appeal No. E118 of 2024 remains pending for hearing on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's preliminary objection on the validity of the appeal and the foundation for stay is merited
  2. 2.Whether the intended appeal is arguable under the twin test in rule 5(2)(b)
  3. 3.Whether the appeal, if successful, would be rendered nugatory absent the orders sought

Key legal issues

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01

Effect of alleged non-service of the record of appeal on an application for stay pending appeal

Holding

The preliminary objection failed because for an interim stay application, jurisdiction rests on the notice of appeal, whose validity was admitted and not impeached

Reasoning

The respondent argued the appeal was incompetent for non-service of the record of appeal. The Court held that its jurisdiction is invoked by filing a notice of appeal, which counsel admitted was served and filed, and whose validity was not impeached. The competence challenge therefore did not defeat the stay application at this interlocutory stage.

p. 4
02

Whether the intended appeal is arguable

Holding

The proposed grounds of appeal were found arguable, the threshold being low

Reasoning

Applying the settled test that an arguable appeal need not succeed but must not be frivolous, and that a single bona fide ground suffices, the Court found the grounds - including want of authority to institute the suit, limitation, and denial of hearing - arguable, while reserving the merits for the full hearing.

p. 4
03

Whether the appeal would be rendered nugatory if the orders sought are denied

Holding

The nugatory limb failed because the applicant did not show the loss would be irreversible or beyond compensation in damages

Reasoning

The applicant failed to specify the area of the suit property occupied and did not suggest the respondent could not compensate him in damages. Since eviction and demolition losses were compensable, the appeal would not be rendered nugatory and the discretionary reliefs were undeserved.

p. 4

Legal principles established

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  • An appeal is arguable if it is not frivolous; a single bona fide arguable ground suffices and it need not necessarily succeed
  • A notice of appeal is what confers jurisdiction on the Court; a record of appeal must contain a valid copy of the notice of appeal
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or compensable in damages
  • In an interim stay application under rule 5(2)(b), the Court's concern as to competence is the validity of the notice of appeal which gives it jurisdiction

Court orders

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  1. 1.The Notice of Motion dated 13th May 2024 is dismissed
  2. 2.Costs shall be 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
Environment and Land Court, Mombasa
ELC No. 69 of 2007 as consolidated with ELC No. 76 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Temporary injunction restraining the respondent from evicting the applicant from the suit property pending appeal

The applicant did not demonstrate that the appeal is arguable and would be rendered nugatory; loss can be compensated by damages

p. 4

Stay of execution of the judgment and decree in Mombasa ELC No. 69 of 2007 as consolidated with ELC No. 76 of 2007

The twin test under rule 5(2)(b) was not satisfied; any loss suffered can be compensated by way of damages

p. 4

Costs

Costs shall be in the appeal.

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.

In conclusion, we find and hold that the applicant has not demonstrated to our satisfaction that he deserves the prayers sought. Consequently, we find that the Notice of Motion dated 13th May 2024 is unmeritorious and the same is hereby dismissed. Costs shall be in the appeal.
p. 4Final orders - dismissal of the application
It is a long-standing principle that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous. It is suficient to establish a single bona fide ground of appeal.
p. 3Arguability threshold under rule 5(2)(b)
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 4Nugatory test
A notice of appeal is what gives this court jurisdiction in any appeal.
p. 3Jurisdiction founded on the notice of appeal

Issues in the judgment

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minor

Internal discrepancy in the notice of appeal date relied on for jurisdiction: the notice of appeal is dated 20th November 2023, yet the judgment being appealed was delivered on 8th November 2023 and the ruling elsewhere refers to 'Mombasa ELC No. 69 of 2017' whereas the opening paragraph refers to 'Mombasa ELC No. 69 of 2007'

minor

The reply to the preliminary objection - counsel's admitted service of a notice of appeal dated 20th November 2023 - sits uneasily with the judgment date of 8th November 2023, which would ordinarily permit an appeal notice within 30 days; the judgment does not explain the chronology

minor

Discrepancy between the 13 grounds of appeal in the memorandum of appeal referred to in submissions and the 7 grounds in the annexed draft memorandum

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, "Koi v Hatimy Group Limited (Civil Application E055 of 2024) [2025] KECA 1811 (KLR)", Case Analysis (2025). Mombasa Civil Appeal No. E118 of 2024 (application dated 13th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1811/eng@2025-11-07

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