Unifresh Exotics (K) Limited v Rimber (Civil Application E010 of 2025) [2025] KECA 1812 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case, saying the appeal could still fix any problems later.
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, unless a stay of proceedings is granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal against the refusal to set aside ex-parte proceedings is arguable
The intended appeal was found arguable on the solitary ground that counsel's 15-minute delay was an excusable mistake and the Applicant should have been heard, but the court said no more lest it embarrass the bench hearing the appeal
The court held that the decision declining to set aside ex-parte proceedings was an exercise of discretion it was disinclined to interfere with. Nevertheless, a solitary arguable ground suffices for the first limb of the rule 5(2)(b) test. Whether the appeal would succeed was a separate matter left to the appeal bench.
Whether the intended appeal would be rendered nugatory if proceedings were not stayed
The nugatory limb failed because the Applicant did not disclose what further evidence remained to be adduced, and a successful appeal could still result in the trial judgment being set aside and the ex-parte proceedings expunged
The court reviewed the material placed before it and found nothing showing what further evidence the Applicant had yet to adduce or how its absence was detrimental. Even if the suit were finalized and the appeal succeeded, the trial judgment could always be set aside and the ex-parte proceedings expunged, so the appeal would not be rendered nugatory.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that unless the orders sought are granted, the appeal, if successful, will be rendered nugatory
- A stay of proceedings is a discretionary power to be exercised sparingly as it interrupts the normal court process and should only be granted in exceptional circumstances
- A single arguable ground of appeal is sufficient to satisfy the arguability limb of rule 5(2)(b)
Court orders
#- 1.The Notice of Motion dated 13th February 2025 is dismissed
- 2.Costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. 427 of 2017
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of further proceedings in ELC Case No. 427 of 2017 pending the intended appeal
The Applicant failed to satisfy the second limb of the rule 5(2)(b) test - the appeal would not be rendered nugatory since a judgment of the trial court could always be set aside and the ex-parte proceedings expunged on appeal
Costs
Costs in the intended appeal.
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.
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.
granting of stay of proceedings is a discretionary power that should be exercised sparingly as it interrupts the normal court process, and is a serious remedy that should only be granted in exceptional circumstances.
The Notice of Motion dated 13th February 2025 lacks merit and is hereby dismissed. Costs in the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unifresh Exotics (K) Limited v Rimber (Civil Application E010 of 2025) [2025] KECA 1812 (KLR)", Case Analysis (2025). Notice of Motion dated 13th February 2025 (Civil Application, Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1812/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.