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Court of AppealDismissedCivil Appeal (Application) 136 of 2020

Diniz Holdings Limited (Formel Safari Holdings Limited) v Kenya Power & Lighting Company Limited

Court of Appeal
19 December 2025
1,511 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a Kshs 6.25 million judgment against Diniz Holdings because Kenya Power can simply refund the money if the appeal later succeeds.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (D K Musinga, F Tuiyott and P Nyamweya, JJA) on a Notice of Motion dated 23rd July 2025 by Diniz Holdings Limited seeking a stay of execution of, and an injunction pending appeal against, the judgment and decree of the High Court (Grace Nzioka, J) dated 27th February 2019 in Commercial Civil Suit No. 142 of 2007. The High Court had found a power supply contract existed between the parties, issued a permanent injunction barring Kenya Power from disconnecting supply, and ordered each party to bear 50% of the bill due (Kshs 6,252,641.95 each). The applicant appealed against the finding of 50% liability. Applying the settled two-limb test in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others, the court found the intended appeal arguable, since the challenge to imposing 50% liability despite concurrent findings of the respondent's fault was not frivolous. However, the court held the nugatory limb failed: the grievance was a monetary claim, and the applicant neither averred nor demonstrated that Kenya Power would be unable to refund the decretal sum if the appeal succeeded. Both limbs being required, the application was dismissed with no order as to costs, the respondent having filed no pleadings. The underlying appeal remains pending; the decision below was not disturbed at this interlocutory stage.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the stay of execution and injunction are granted, the appeal, if successful, will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable because the contention that the applicant was condemned to pay 50% despite concurrent findings of the respondent's fault is not frivolous.

Reasoning

The court applied the settled test that an arguable appeal is one raising at least a single bona fide issue deserving full consideration, not one that must succeed. The applicant's challenge to the trial court's imposition of 50% liability despite findings that the respondent installed a faulty meter and failed to give timely notice of billing discrepancies was held to be a bona fide ground warranting consideration on appeal.

02

Whether the appeal would be rendered nugatory

Holding

The nugatory limb failed because the grievance is a monetary claim and the applicant did not demonstrate the respondent could not refund the sum if the appeal succeeded.

Reasoning

Citing Stanley Kang'ethe Kinyanjui v Tony Ketter, the court held that nugatory-ness depends on whether what is sought to be stayed is reversible or, if not, whether damages would compensate. The decretal sum of Kshs 6,252,641.95 is monetary; absent an averment or demonstration that the respondent cannot refund it, the appeal would not be rendered nugatory if execution proceeded.

Legal principles established

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  • An applicant for stay of execution or injunction pending appeal must demonstrate both that the intended appeal is arguable and that, unless the orders are granted, the appeal will be rendered nugatory; failure on either limb is fatal.
  • An arguable appeal need not ultimately succeed; it suffices that it raises at least one bona fide issue deserving full consideration.
  • Where what is sought to be stayed is a monetary claim, the applicant must demonstrate the respondent's inability to refund if the appeal succeeds.

Court orders

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  1. 1.The Notice of Motion dated 23rd July 2025 is dismissed with no order as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Commercial Civil Suit No. 142 of 2007
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court, with an interlocutory application for stay of execution and injunction pending appeal

Relief refused

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Stay of execution of the judgment dated 27th February 2019 and the decree in Nairobi HCCC 142 of 2007

Applicant satisfied only the arguability limb and failed to demonstrate the appeal would be rendered nugatory; the decretal sum is monetary and refundable

p. 3

Injunction restraining the respondent from interfering with the applicant's use, supply and enjoyment of power connection

Both limbs of the test must be satisfied; the nugatory limb failed

p. 3

Costs

No order as to costs, since the respondent did not file any pleadings

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.

It is trite law that in an application for stay of execution of a judgment pending appeal or an injunction pending appeal, the applicant must demonstrate, rstly, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the appeal, if successful, will be rendered nugatory
p. 1Test for stay of execution and injunction pending appeal
The law is settled that an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona de issue that deserves full consideration on appeal.
p. 3Definition of an arguable appeal
The applicant was required to satisfy both limbs and has not, and the Notice of Motion dated 23rd July 2025 is accordingly dismissed with no order as to costs, since the respondent did not le any pleadings.
p. 3Final orders - dismissal of the application
Consequently, although its appeal is arguable, the applicant has not established that it will be rendered nugatory in the event the injunction or stay orders that it seeks are not granted.
p. 3Failure of the nugatory limb

Issues in the judgment

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minor

Stanley Kang'ethe Kinyanjui citation appears as [2013] eKLR in paragraph 1 but [2013] KECA 378 (KLR) in paragraph 6

minor

Submissions dated 2nd October 2025 were said to be reiterated at a hearing held on 27th August 2025, an apparent date inconsistency

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, "Diniz Holdings Limited (Formel Safari Holdings Limited) v Kenya Power & Lighting Company Limited", Case Analysis (2025). Civil Appeal (Application) 136 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2323/eng@2025-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.