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Court of AppealDismissed

Rajani & another v Rajani & 2 others (Civil Application E108 of 2024) [2025] KECA 1823 (KLR)

Court of Appeal
7 November 2025
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a Notice of Motion dated 24th September 2024, the applicants sought a stay of proceedings in ELC Cause No. 232 of 2019 pending an intended appeal against a ruling of N. Matheka, J delivered on 31st January 2024, in which the Judge ordered the respondents to give discovery of specified documents save for privileged documents. The applicants contended that the ruling was ambiguous as to the extent of discovery obligations, that the respondents were withholding critical transactional documents under the guise of privilege, and that they would be prejudiced if the trial proceeded without full discovery. All three respondents filed replying affidavits deposing to compliance with the discovery order, and noting that the applicants had participated in case management and had commenced the hearing of the main suit on 5th November 2024. The Court of Appeal at Mombasa (Nyamweya, Laibuta and Ngenye-Macharia, JJAA) dismissed the application. It held that the applicants were approbating and reprobating: they had accepted the benefit of the discovery ordered while simultaneously challenging the validity of the order directing it, conduct the Court found unacceptable, applying Evans v Bartlam. The Court further held that it has no role in enforcing trial court orders of that nature and cannot stay proceedings already underway merely to interpret an alleged ambiguity in a discovery order; a party aggrieved by non-compliance or ambiguity has recourse to the trial court for clarification and enforcement. On the twin principles under rule 5(2)(b) of the Court of Appeal Rules, the Court found the intended appeal not arguable and, that being so, declined to consider whether it would be rendered nugatory. The motion was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicants have an arguable appeal against the ruling of N. Matheka, J on discovery
  2. 2.Whether, if the appeal is successful, it would be rendered nugatory absent a stay of proceedings
  3. 3.Whether the Court can stay proceedings already underway merely to interpret an alleged ambiguity in a discovery order

Key legal issues

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01

Whether the intended appeal is arguable under the twin principles of rule 5(2)(b)

Holding

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.

Reasoning

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.

p. 4
02

Whether the applicants' conduct of taking benefits under the discovery order while appealing against it disentitles them to a stay

Holding

Yes. The applicants were approbating and reprobating, an unacceptable conduct that undermined their application.

Reasoning

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.

p. 4
03

Whether the Court of Appeal can stay proceedings to enforce or interpret a trial court's discovery order

Holding

No. The Court has no role in enforcing such orders; remedies lie in the trial court.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The applicants' Notice of Motion dated 24th September 2024 is dismissed
  2. 2.Costs of the application are awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
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

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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

p. 4

Costs

The Notice of Motion dated 24th September 2024 is dismissed with costs to the respondents.

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.

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
p. 4Twin principles under rule 5(2)(b)
Consequently, the applicants’ Notice of Motion dated 24th September 2024 fails and is hereby dismissed with costs to the respondents. Orders accordingly.
p. 4Final orders / disposition
the applicants cannot on the one hand reap the benefits of discovery and, at the same time, challenge the order directing such discovery.
p. 4Approbation and reprobation
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.
p. 4Limits of appellate power over interlocutory discovery orders
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.
p. 4Arguability of the intended appeal

Issues in the judgment

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minor

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.

minor

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.

minor

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

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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, "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.