Braeburn Limited v Mboya & 4 others (Civil Application E654 of 2025) [2026] KECA 393 (KLR)
The bottom line
#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
#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 under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether, unless the orders sought are granted, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
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.
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.
Whether the intended appeal would be rendered nugatory
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.
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.
Legal principles established
#- 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
#- 1.Application dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Application dismissed with costs to the respondents
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 well settled that an arguable appeal is not one that must ultimately succeed, but one that merits judicial interrogation on 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
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.