Wadia Construction Company Ltd v Synergy Industrial Credit Ltd & another (Civil Appeal (Application) E220 of 2025) [2025] KECA 2020 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the repossession and sale of 49 financed vehicles, ruling that money damages could adequately compensate the borrower if the appeal later succeeded.
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
- 2.Whether the appeal, if successful, would be rendered nugatory unless the orders sought are granted
- 3.Whether exceptional circumstances exist to justify a stay of the High Court proceedings pending appeal
Key legal issues
#Test for injunction pending appeal under rule 5(2)(b)
The applicant must satisfy both the arguability and nugatory limbs; arguability alone is insufficient
The Court found some grounds of appeal arguable but held that the applicant failed the second limb. The applicant did not allege the 1st respondent could not compensate it, and the 1st respondent affirmed its capacity to compensate. Loss was therefore quantifiable and the appeal would not be rendered nugatory.
Stay of proceedings pending appeal
Stay of proceedings requires demonstration of exceptional circumstances, none of which was shown
Relying on the Supreme Court's decision in James Nthuku Kithinji, the Court held that stay of proceedings is an extraordinary remedy granted only in exceptional circumstances. The applicant demonstrated none, so the prayer was declined.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that it will be rendered nugatory if the orders are not granted; one arguable ground suffices for the first limb
- An appeal will not be rendered nugatory where the loss claimed is quantifiable and the respondent is able to compensate the applicant
- A stay of proceedings pending appeal can only be granted in exceptional circumstances
Court orders
#- 1.Dismissal of the notice of motion dated 19th June 2025
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCOMM No. E604 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining sale, transfer or repossession of the 49 motor vehicles pending appeal
The applicant failed to satisfy both limbs of the rule 5(2)(b) test, particularly the nugatory limb
Stay of proceedings in HCCOMM No. E604 of 2024 pending appeal
No exceptional circumstances were demonstrated to warrant a stay of proceedings
Costs
The application was 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.
It is well established that in an application under rule 5(2)(b) of this Court’s Rules, an applicant has to show that the appeal or intended appeal is arguable, and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
An arguable appeal is not one that must necessarily succeed, but one which ought to be argued fully. Even one arguable ground of will sufice.
All in all, we find this application unmerited and dismiss it with costs to the respondents.
Issues in the judgment
#Inconsistent figure for amount paid by the applicant - paragraph 4 states Kshs. 76,218,377 while paragraph 8 states Kshs. 75,218,377
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wadia Construction Company Ltd v Synergy Industrial Credit Ltd & another (Civil Appeal (Application) E220 of 2025) [2025] KECA 2020 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2020/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.