Nathoo & another v Afex Expeditions Ltd & another
The bottom line
#Kenya's Court of Appeal halted personal execution of an Kshs 87 million corporate debt against two directors until their appeal is heard.
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, unless stay is granted, the appeal will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The question whether the High Court crossed the high threshold for lifting the corporate veil is a legitimate point deserving full appellate interrogation, satisfying the first limb.
An arguable appeal need not necessarily succeed; it presents at least one serious legal issue warranting further judicial consideration. Whether the Judge could disregard the company's separate legal personality where the evidence allegedly did not establish directorship or control is, on its face, such an issue. A single bona fide arguable ground suffices under the settled Kinyanjui principles.
Nugatory test in a personal-liability-for-corporate-debt context
This is not a typical money decree; personal execution against non-parties would extinguish the jurisdictional substratum of the appeal, so both limbs are met.
The decree is against a corporation, but the impugned ruling imposes personal liability on individuals who were not parties to the original suit. The prejudice is jurisdictional and structural, not merely financial. Given the applicants' advanced age, the nature of the case and the magnitude of the decretal sum, execution would be irreversible in any realistic sense, and a future refund would not ameliorate the risk.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that unless stay is granted the appeal will be rendered nugatory; even a single arguable ground suffices.
- The nugatory test is context-specific and sensitive to the nature of the impugned order; a ruling imposing personal liability on non-parties to the original suit is not a typical money-decree situation.
- The court exercises original jurisdiction on rule 5(2)(b) applications and does not undertake a mini-appeal, even where conditional stay was granted at the High Court.
Court orders
#- 1.Stay of execution of the ruling delivered on 5th July, 2024 and all consequential orders granted pending the hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCOMM No. 554 of 2014
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
In the result, the application dated 30th April, 2025 succeeds. A stay of execution of the ruling delivered on 5th July, 2024 and all consequential orders is hereby granted pending the hearing and determination of the intended appeal.
Costs of this application shall abide the outcome of the appeal.
an applicant must demonstrate, first, that the appeal is arguable and, second, that unless stay is granted, the appeal will be rendered nugatory
We are of the view that this is not a typical money decree situation.
The applicants' inability to meet the specific financial terms does not negate the need to preserve the appeal's substratum.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathoo & another v Afex Expeditions Ltd & another", Case Analysis (2025). Civil Appeal (Application) E343 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2319/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.