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Court of AppealDismissed· [2026] KECA 248 (KLR)

Bosek v Singo’ei (Civil Application E229 of 2025) [2026] KECA 248 (KLR)

Court of Appeal
13 February 2026
809 words in judgment
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The bottom line

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The Court of Appeal refused to pause a Kshs. 24 million judgment because the winner could repay the money if the appeal later succeeded.

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 (S. Gatembu Kairu, Mumbi Ngugi and P. Nyamweya, JJA) delivered on 13th February 2026 on an application by Joel Kimutai Bosek seeking stay of execution of a High Court judgment of 14th March 2025. The underlying suit, brought by Felix Limo Sing’oei by originating summons, enforced a settlement agreement of 27th March 2024 under which the applicant, an advocate, acknowledged receiving Kshs. 24,000,000.00 and undertook to repay it in two instalments after the parties elected to rescind a 2020 sale contract over two properties. The High Court held it had jurisdiction as the claim arose from the settlement contract, rejected the applicant's claim of duress, and entered judgment for Kshs. 24,000,000.00. On the stay application, the court applied the well-known two-limb test from Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without a stay. The court found the intended appeal arguable, since arguability does not require prospects of certain success. However, on the nugatory limb, the respondent demonstrated that he was a person of substance, a leading vehicle importer able to refund the decretal sum if the appeal succeeded, whereas the applicant's contrary assertion failed. The application was accordingly dismissed with costs to the respondent. No separate opinions were written; the bench was unanimous.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable on grounds including jurisdiction of the High Court over a matter said to belong to the Environment and Land Court, non-accrual of cause of action, and re-writing of the contract

Reasoning

The court applied the settled test that an arguable appeal need not be one that would necessarily succeed. The memorandum of appeal raised complaints about jurisdiction, accrual of the cause of action and the trial Judge re-writing the contract, which sufficed to establish arguability for the purposes of a stay application.

p. 2
02

Whether the appeal would be rendered nugatory without a stay

Holding

No nugatory effect was shown; the respondent demonstrated he was a person of substance able to refund the Kshs. 24,000,000.00 if the appeal succeeded

Reasoning

Nugatory-ness depends on whether execution, if allowed to proceed, is reversible. The respondent asserted, and the court accepted, that he is a leading vehicle importer with car yards, and his ability to pay the disputed sum in the first place demonstrated capacity to refund. The applicant's contrary claim failed, so the second limb of the stay test was not satisfied and the application was dismissed.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate that the appeal or intended appeal is arguable and that, if it succeeds, it would be rendered nugatory without a stay
  • An arguable appeal is not one that will necessarily succeed
  • The nugatory-ness inquiry depends on whether what is sought to be stayed is reversible, and the respondent's ability to refund the decretal amount is relevant

Court orders

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  1. 1.Application for stay of execution of the judgment delivered on 14th March 2025 dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Cases cited (1)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others
    [2013] KECA 378 (KLR)
On appeal from
High Court at Nairobi
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court; application for stay of execution pending appeal

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, "Bosek v Singo’ei (Civil Application E229 of 2025) [2026] KECA 248 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/248/eng@2026-02-13

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