Rajani & another v Rajani & 2 others (Civil Application E108 of 2024) [2025] KECA 1823 (KLR)
The bottom line
#The Court of Appeal refused to pause a Mombasa land case, ruling that parties who benefit from a court order cannot then turn around and challenge it.
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 applicants have an arguable appeal against the ruling of N. Matheka, J on discovery
- 2.Whether, if the appeal is successful, it would be rendered nugatory absent a stay of proceedings
- 3.Whether the Court can stay proceedings already underway merely to interpret an alleged ambiguity in a discovery order
Key legal issues
#Whether the intended appeal is arguable under the twin principles of rule 5(2)(b)
The appeal grounds founded on the alleged ambiguity of the discovery order are not arguable; having failed the first limb, the Court did not consider the nugatory limb.
The Court examined the nine draft grounds of appeal, all premised on the contention that the discovery order reserving privileged documents was ambiguous. It held counsel are expected to know what constitutes privileged documents, that the applicants participated in case management and commenced trial without grievance, and that the respondents deposed to compliance. The contention was therefore not arguable, and the second limb of the twin test fell away.
Whether the applicants' conduct of taking benefits under the discovery order while appealing against it disentitles them to a stay
Yes. The applicants were approbating and reprobating, an unacceptable conduct that undermined their application.
The applicants accepted and benefited from the discovery they obtained under the impugned ruling, did not deny documents were shared, and proceeded with case management and the hearing with their consent. Turning around to challenge the same order as ambiguous was inconsistent conduct. Relying on Evans v Bartlam, the Court held that the doctrine of approbation and reprobation applies where a party accepts a benefit under a judgment while alleging its invalidity.
Whether the Court of Appeal can stay proceedings to enforce or interpret a trial court's discovery order
No. The Court has no role in enforcing such orders; remedies lie in the trial court.
The Court reasoned that if the trial court's discovery orders were disobeyed, counsel knew the appropriate steps, and the applicants could return to the trial court for clarification of what privileged documents mean and for enforcement orders. The appellate court therefore cannot stay proceedings already underway merely to interpret the impugned ruling and pronounce on the alleged ambiguity.
Legal principles established
#- An applicant under rule 5(2)(b) must establish an arguable appeal and that the appeal would be rendered nugatory absent stay.
- The Court of Appeal will not stay proceedings already underway in the court below merely to interpret an alleged ambiguity in an interlocutory discovery order.
- A party cannot approbate and reprobate - accept the benefit of a discovery order while simultaneously challenging its validity.
- A party aggrieved by non-compliance with or ambiguity in a trial court's discovery order has recourse to the trial court for clarification and enforcement.
Court orders
#- 1.The applicants' Notice of Motion dated 24th September 2024 is dismissed
- 2.Costs of the application are awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- ELC Cause No. 232 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)
Relief refused
#Stay of proceedings in ELC Cause No. 232 of 2019 pending appeal
The intended appeal is not arguable; the applicants have acquiesced in and benefited from the discovery order and the Court cannot stay proceedings merely to interpret the alleged ambiguity in the discovery order
Costs
The Notice of Motion dated 24th September 2024 is 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.
the applicant must establish that he or she has an arguable appeal; and that the appeal (or intended appeal), if successful, would be rendered nugatory absent stay
Consequently, the applicants’ Notice of Motion dated 24th September 2024 fails and is hereby dismissed with costs to the respondents. Orders accordingly.
the applicants cannot on the one hand reap the benefits of discovery and, at the same time, challenge the order directing such discovery.
this Court has no role to play in the enforcement of orders of the nature in issue, and cannot possibly stay proceedings already underway in the court below pending appeal to this Court merely to interpret the impugned ruling and pronounce itself on what the applicants view as ambiguity in the order for discovery.
A cursory look at the grounds of appeal founded on the contention that the learned Judge’s order for discovery of evidential documents in the respondents’ possession other than “privileged documents” is ambiguous is, in our respectful view, not arguable.
Issues in the judgment
#The judgment does not state the case number or title of the application before the Court of Appeal; only the underlying trial cause (ELC Cause No. 232 of 2019) is identified.
The judgment does not name or describe the 2nd and 3rd respondents beyond their numerals; their identities are not disclosed on the face of the copy provided.
The judgment records the applicants as seeking a stay of proceedings pending 'appeal' but describes the memorandum of appeal as a 'draft and undated memorandum', leaving it unclear whether an appeal has actually been filed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rajani & another v Rajani & 2 others (Civil Application E108 of 2024) [2025] KECA 1823 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1823/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.