Diniz Holdings Limited (Formel Safari Holdings Limited) v Kenya Power & Lighting Company Limited
The bottom line
#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
#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 the stay of execution and injunction are granted, the appeal, if successful, will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
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.
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.
Whether the appeal would be rendered nugatory
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.
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
#- 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
#- 1.The Notice of Motion dated 23rd July 2025 is dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
No order as to costs, since the respondent did not file any pleadings
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 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
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.
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.
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.
Issues in the judgment
#Stanley Kang'ethe Kinyanjui citation appears as [2013] eKLR in paragraph 1 but [2013] KECA 378 (KLR) in paragraph 6
Submissions dated 2nd October 2025 were said to be reiterated at a hearing held on 27th August 2025, an apparent date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.