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Court of AppealDismissedNotice of Motion dated 12th November 2025 (Civil Application)

Braeburn Limited v Mboya & 4 others (Civil Application E654 of 2025) [2026] KECA 393 (KLR)

Court of Appeal
27 February 2026
2,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Braeburn's bid to block residents' restrictions on lane access failed because a workable alternative route meant no irreparable harm pending appeal.

What this practically means

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Executive summary

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Braeburn Limited moved the Court of Appeal under sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules seeking a temporary injunction to restrain the Amboseli Lane Residents Association from denying it access to LR No. 330/204, Lavington, through Amboseli Lane pending an intended appeal against an Environment and Land Court ruling. The trial court had declined Braeburn's injunction, finding no prima facie case given alternative access along Gitanga Road and Braeburn's creation of access without approvals, and ordered the status quo limiting Braeburn to staff and service vehicles on the lane, with student drop-offs and pick-ups restricted to four Gitanga Road gates. Applying the two-limb rule 5(2)(b) test, the Court of Appeal found a bona fide arguable issue regarding whether Amboseli Lane is a public road, its statutory classification and the trial court's treatment of status quo and balance of convenience. However, Braeburn failed the nugatory limb: the school continues operating through four Gitanga Road gates, the impugned orders merely regulate access rather than block it, and the alleged congestion and disruption, while not trivial, were neither irreversible nor beyond adequate redress. Conversely, granting the injunction risked lasting harm to residents whose only access is Amboseli Lane. The Court dismissed the application with costs to the respondents.

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 under rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether, unless the orders sought are granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The Court found at least one bona fide arguable issue, including whether Amboseli Lane is a public road, its statutory classification, and the trial court's treatment of status quo and balance of convenience.

Reasoning

Without pronouncing on the merits, the Court examined the draft memorandum of appeal and identified questions on the status of Amboseli Lane, its classification, and the judge's application of status quo, balance of convenience and access-rights principles as not frivolous. This satisfied the first limb of the rule 5(2)(b) test.

p. 4
02

Whether the intended appeal would be rendered nugatory

Holding

The Court held that Braeburn failed to demonstrate nugatory-ness: the school continues operating via four Gitanga Road gates, the orders regulate rather than block access, and the alleged inconvenience is not irreversible or beyond compensable redress.

Reasoning

The burden lay on Braeburn to show irreversibility or inadequacy of damages. The trial court's orders did not shut down operations or block access to the suit property but merely regulated how access is made pending determination of the suit. Meanwhile, granting the orders would disrupt the residents' sole access route with potentially lasting, difficult-to-undo harm.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must establish both that the intended appeal is arguable and that it would be rendered nugatory if the orders are not granted; satisfying only one limb is insufficient.
  • An arguable appeal need not be one that will succeed; it suffices that it merits judicial interrogation on appeal.
  • The nugatory test asks whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party; inconvenience capable of redress does not meet the threshold.

Court orders

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  1. 1.Application dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
ELC Case No. E532 of 2024
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 43, 47 and 55 of the Court of Appeal Rules

Relief refused

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Temporary injunction restraining respondents from denying Braeburn access to LR No. 330/204 through Amboseli Lane pending appeal

Applicant satisfied only the arguability limb and failed the nugatory-ness limb of the rule 5(2)(b) test

p. 5

Costs

Application dismissed with costs to the respondents

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 well settled that an arguable appeal is not one that must ultimately succeed, but one that merits judicial interrogation on appeal.
p. 4Test for an arguable appeal
the inconvenience alleged does not meet the threshold of the nugatory principle which requires proof that the success of the appeal would be rendered meaningless or of no practical value
p. 4Nugatory-ness threshold
As Braeburn has satisfied only one of the requisite limbs for the grant of a stay under rule 5(2)(b), this application fails and is accordingly dismissed with costs to the respondents.
p. 5Final orders and disposition

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, "Braeburn Limited v Mboya & 4 others (Civil Application E654 of 2025) [2026] KECA 393 (KLR)", Case Analysis (2026). Notice of Motion dated 12th November 2025 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/393/eng@2026-02-27

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