Manjeru v Shah & 5 others (Civil Application E638 of 2024) [2025] KECA 1848 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case, confirming that early trial progress and delay defeat stay applications.
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 and not frivolous
- 2.Whether the intended appeal will be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Nature of the Court of Appeal's jurisdiction under Rule 5(2)(b)
Rule 5(2)(b) is a tool of preservation of the substratum of an intended appeal, exercising the Court's wide and unfettered inherent discretionary jurisdiction.
Relying on Trust Bank Ltd v Investech Bank, the Court described the Rule 5(2)(b) jurisdiction as discretionary and wide. Relying on the Supreme Court's decision in KNUCT, it accepted that the rule illuminates the Court of Appeal's inherent discretionary jurisdiction to preserve the substratum of an intended appeal, rather than an original jurisdiction.
Whether the intended appeal was arguable
The intended appeal was arguable, since whether the trial Judge exercised her discretion judiciously in refusing further evidence is a bona fide arguable ground.
The Court held that whether to admit further evidence is discretionary and case-specific, and the gravamen of the intended appeal is whether the learned Judge exercised that discretion judiciously and not on a whim. Whether the appellate bench would interfere is for that bench, but the point passed the low arguability threshold.
Whether the intended appeal would be rendered nugatory without a stay of proceedings
The applicant failed to demonstrate nugatoryess: only two of seven defence witnesses had testified, the documents could still be put to those witnesses in cross-examination, and further evidence can be admitted on appeal under Rule 31(1)(b).
The Court noted the concession that the defence case had not reached an advanced stage, with about seven witnesses yet to testify, so the applicant could still participate fully and introduce her documents. Should she lose and appeal, she could seek to adduce further evidence under Rule 31(1)(b). Her unexplained four-month delay in filing the application also weighed against her.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both limbs - an arguable intended appeal and that the appeal will be rendered nugatory if stay is not granted; one limb alone is insufficient.
- An arguable appeal need not succeed; it is one that is not frivolous and ought to be argued fully, without definitive findings at the interlocutory stage.
- In considering stay of proceedings, the court balances the applicant's right of appeal and risk of irreparable harm against the respondent's right to have the case heard and determined, and unexplained delay is a relevant factor.
Court orders
#- 1.The Notice of Motion dated 25th November 2024 is dismissed
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC No. 593 of 2016 – Mahesh Shah v Chief Lands Registrar & 5 others
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (derived from Article 164(3) of the Constitution)
Relief refused
#Stay of proceedings in Nairobi ELC No. 593 of 2016 pending the hearing and determination of the intended appeal
The applicant failed to satisfy both twin principles under Rule 5(2)(b); in particular she did not demonstrate that the intended appeal would be rendered nugatory, and there was an unexplained four-month delay in filing the application
Costs
The Notice of Motion dated 25th November 2024 is dismissed with costs to the 1st respondent, as the other respondents did not respond to the application.
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 who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous.
an arguable appeal is not necessarily one that will succeed
the Court needs to balance the applicant’s right to exercise her right of appeal and the potential for irreparable harm against the respondents’ right to have their case heard, determined and potentially benefit from a favourable judgment
the applicant filed this application 4 months after delivery of the impugned ruling, and that delay has not been explained
Accordingly, the Notice of Motion dated 25th November 2024 fails and is hereby dismissed with costs to the 1st respondent, as the other respondents did not respond to the application.
Issues in the judgment
#The judgment cites 'Meta Platforms, Inc & Ano. -vs- Samasource Kenya EPZ Limited (supra)' but no earlier citation of that case appears in the judgment, so its full citation is unavailable.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manjeru v Shah & 5 others (Civil Application E638 of 2024) [2025] KECA 1848 (KLR)", Case Analysis (2025). Notice of Motion dated 25th November 2024 in intended appeal from Nairobi ELC No. 593 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1848/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.