Epco Builders Limited v Kabuito Contractors Limited
The bottom line
#Kenya's Court of Appeal refused to pause a 16-year-old construction case, ruling the appeal could still succeed even if the trial finished first.
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 application is incompetent for non-compliance with rule 13(4) of the Court of Appeal Rules
- 2.Whether the omission to attach a draft memorandum of appeal is fatal to the application
- 3.Whether the intended appeal is arguable
- 4.Whether the intended appeal, if successful, would be rendered nugatory absent a stay of proceedings
Key legal issues
#Effect of non-compliance with rule 13(4) of the Court of Appeal Rules
Non-compliance with rule 13 does not render an application incompetent; the Rules provide only that the Registrar may refuse to accept a non-compliant document, and courts should not elevate procedural non-compliance to a fetish.
The respondent cited no rule making non-compliance with rule 13(4) fatal. Rule 14(1) vests a discretionary sanction in the Registrar. The court held that purely procedural defects may be met by a penalty in costs unless the non-compliance is contumelious and prejudices the other side's presentation of its case.
Whether a draft memorandum of appeal must be attached
Attachment of a draft memorandum of appeal is not required; the applicant need only expound, without detail, in what way the grounds are arguable.
The purpose is to enable the Court to assess arguability. Grounds set out and explained in a supporting affidavit suffice. Merely asserting arguability without expounding does not suffice, but in this case the grounds were set out and explained in the affidavit.
Arguability of the intended appeal
The appeal was not frivolous; a single bona fide arguable ground suffices and grounds need not be argued at this stage.
An arguable appeal is one that ought to be argued fully, not one that must succeed. The applicant raised grounds including admission of documents whose makers were not called, and the Judge's failure to deal with the explanation for non-attendance and the alternative expungement prayer. Following National Industrial Credit Bank Ltd v Wasike, grounds need only be pointed out, not argued.
Whether the appeal would be rendered nugatory absent stay of proceedings
The applicant failed the nugatory test; the appeal would not be worthless even if the suit below is finalised, since the Court of Appeal can still set aside the decision and consequential orders.
Stay of proceedings is a grave judicial action impinging on access to justice and the right to be heard without delay, and a higher nugatory threshold applies than for stay of execution. Applying Silverstein v Chesoni and Benjoh Amalgamated, where the appellate court can undo the proceedings below and costs can compensate, the appeal is not rendered nugatory. The balancing exercise under the overriding objective and proportionality favoured continuing the 2009 suit.
Legal principles established
#- Non-compliance with rule 13 of the Court of Appeal Rules does not render an application incompetent; the sanction is the Registrar's discretionary refusal to accept the document, and procedural non-compliance may be met with costs rather than dismissal.
- There is no requirement that a draft memorandum of appeal be attached to an application for stay; it suffices that the grounds or intended grounds are brought to the Court's attention by affidavit or otherwise.
- A higher threshold applies to the nugatory requirement in applications for stay of proceedings pending appeal than in applications for stay of execution, because a stay of proceedings derails pending litigation and curtails the respondent's right to expeditious disposal under Article 159(2)(d).
- Where the suit below can be finalised and the appellate court can still set aside the decision appealed against with consequential orders, the appeal will not be rendered nugatory absent a stay of proceedings.
Court orders
#- 1.The Notice of Motion dated 5th August 2025 seeking stay of proceedings in HCCOMM No. 422 of 2009 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Nairobi
- HCCOMM No. 422 of 2009
- Jurisdiction invoked
- Inherent appellate jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act; application for stay of proceedings pending appeal under the Court of Appeal Rules
Relief refused
#Stay of proceedings in Nairobi HCCOMM No. 422 of 2009 pending the hearing and determination of the appeal
The applicant failed to demonstrate that the intended appeal would be rendered nugatory absent a stay; no exceptional circumstances justified staying the proceedings
Costs
The Motion is dismissed with costs to the respondent.
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.
On occasion, non-compliance with purely procedural requirements may be sanctioned by way of penalty in costs rather than disallowance of the application, unless they are contumelious and make it difficult for the other side to adequately present its case.
There is no requirement that the draft memorandum of appeal be attached. Once the grounds or intended grounds are brought to the attention of the Court, by way of an affidavit or otherwise, it suffices for the purposes of determination of arguability of the appeal.
The two conditions are considered conjunctively so that failure to satisfy either leads to dismissal of the application.
when it comes to the nugatory aspect, in the latter case, a higher threshold is required to be met than in the former.
Nothing bars this Court, upon hearing the appeal, from setting aside the decision being appealed against together with consequential orders
As the applicant has failed to surmount the second hurdle, this Motion fails and is hereby dismissed with costs.
Issues in the judgment
#Date inconsistency in the narrative of the applicant's advocate's indisposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Epco Builders Limited v Kabuito Contractors Limited", Case Analysis (2025). Civil Appeal (Application) E629 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2252/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.