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Court of AppealDismissedMombasa Civil Appeal No E170 of 2024 (application dated 30th August 2024)

Sealine Ltd v Naker & Naker (Suing in their capacity as the legal representatives of the Estate of Kantaben Ramniklal Naker) & 3 others (Civil Appeal (Application) E170 of 2024) [2026] KECA 73 (KLR)

Court of Appeal of Kenya
30 January 2026
2,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a Mombasa land trial, ruling that losing at trial does not destroy an appeal since a judgment can be set aside later.

What this practically means

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Executive summary

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Sealine Limited, the applicant, moved the Court of Appeal at Mombasa by a notice of motion dated 30th August 2024 under rules 5(2)(b), 42 and 47 of the Court of Appeal Rules, 2022, seeking a stay of proceedings in Mombasa ELC Case No E030 of 2023 pending its appeal against a ruling of the Environment and Land Court dated 24th July 2024, which had declined to strike out the suit as time barred under section 7 of the Limitation of Actions Act or barred by laches. The dispute traces to a claim that the applicant's late director's business partner purchased the suit property in 1975 in equal shares, with a caveat later fraudulently removed before transfer to the applicant, which claims to be an innocent purchaser for value in 2013. The 1st respondents, legal representatives of the late plaintiff's estate, opposed, arguing that no exceptional circumstances, substantial loss or nugatory aspect had been demonstrated. The Court restated that the rule 5(2)(b) tests are cumulative: an arguable appeal and nugatory-ness if stay is refused. It found the first limb satisfied, holding that the limitation and laches grounds raised substantive issues deserving interrogation. However, it held the second limb failed: continuation of the trial would not render the appeal nugatory, since the applicant's right of appeal would not be extinguished and any trial judgment could be set aside if the appeal succeeded. The application was dismissed with costs in the intended appeal.

Questions the Court framed

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

  1. 1.Whether the applicant has met the threshold for the grant of an order of stay of proceedings pending the hearing and determination of the intended appeal, namely whether the intended appeal is arguable and whether it would be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The first limb was satisfied: the grounds that the suit was time barred under section 7 of the Limitation of Actions Act and barred by laches are substantive issues warranting interrogation by the Court

Reasoning

An arguable appeal need not necessarily succeed; it suffices that it raises at least one bona fide issue deserving consideration, without definitive findings of fact or law. The applicant's contention that the learned Judge failed to consider limitation and laches raised such substantive issues, so the first limb was satisfied.

p. 5
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The second limb failed: continuation of the trial would not render the appeal nugatory because any trial judgment could be set aside on appeal

Reasoning

What renders an appeal nugatory depends on the circumstances of each case and requires balancing the competing interests and hardships of the parties. Here, continuation of proceedings would not extinguish or render illusory the applicant's right of appeal, and a trial judgment, if the appeal succeeded, could always be set aside. The applicant therefore did not satisfy the second limb.

p. 5

Legal principles established

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  • The principles applicable to applications for injunctions, stay of execution and stay of proceedings under rule 5(2)(b) are the same, and an applicant must satisfy two cumulative requirements: an arguable appeal and that the appeal would be rendered nugatory unless stay is granted
  • Stay of proceedings is a discretionary power to be exercised sparingly, being a grave and serious remedy grantable only in exceptional circumstances
  • A mere judgment at trial does not render an appeal nugatory, because such a judgment can be set aside on appeal; continuation of proceedings does not extinguish the right of appeal

Court orders

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  1. 1.The notice of motion dated 30th August 2024 is dismissed
  2. 2.Costs in the intended appeal

The bench

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

majority
majority
On appeal from
Environment and Land Court, Mombasa
Mombasa ELC Case No E030 of 2023 (ruling dated 24th July 2024)
Jurisdiction invoked
Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules, 2022

Relief refused

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Stay of proceedings in Mombasa ELC Case No E030 of 2023 pending hearing and determination of the appeal

The second limb of the rule 5(2)(b) test was not satisfied: continuation of the trial would not render the appeal nugatory since any judgment of the trial court could be set aside on appeal

p. 5

Costs

Costs in the intended appeal

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.

To succeed, an applicant must satisfy two cumulative requirements: first, that the intended appeal is arguable; and, secondly, that unless the stay sought is granted, the appeal, if successful, would be rendered nugatory.
p. 4Rule 5(2)(b) threshold
granting of stay of proceedings is a discretionary power that should be exercised sparingly as it interrupts the normal court process, and is a grave and serious remedy that should only be granted in exceptional circumstances
p. 4Stay of proceedings - exceptional circumstances
the applicant’s right of appeal is not extinguished, negated, or rendered illusory, by continuation of the proceedings, nor does it create an irreversible situation incapable of being remedied
p. 5Nugatory test
The notice of motion dated 30th August 2024 lacks merit and is hereby dismissed. Costs in the intended appeal.
p. 5Final orders

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, "Sealine Ltd v Naker & Naker (Suing in their capacity as the legal representatives of the Estate of Kantaben Ramniklal Naker) & 3 others (Civil Appeal (Application) E170 of 2024) [2026] KECA 73 (KLR)", Case Analysis (2026). Mombasa Civil Appeal No E170 of 2024 (application dated 30th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/73/eng@2026-01-30

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