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Court of AppealPartially AllowedCivil Appeal No. E039 of 2025

Kabundu Holdings Limited v Wakf Commissioner of Kenya (Civil Appeal (Application) E039 of 2025) [2026] KECA 752 (KLR)

Court of Appeal of Kenya
24 April 2026
2,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal has blocked Kabundu Holdings' eviction from prime Mombasa property pending appeal, ruling the appeal is arguable and eviction would cause unquantifiable loss.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Tuiyott, Laibuta and Ngenye-Macharia, JJAA) on a Notice of Motion dated 24th March 2025 by Kabundu Holdings Limited under rule 5(2)(b) of the Court of Appeal Rules, seeking injunction and stay of execution of a judgment of the Environment and Land Court (Matheka, J.) dated 19th December 2024, which ordered the applicant to give vacant possession of Mombasa/Block XX/47 and issued a permanent injunction against trespass. The applicant, occupying the property for 51 years and having built a storeyed building thereon, argued that the suit was a nullity for want of proper authority: the resolution appointing the respondent's advocates was passed at a meeting without the statutory quorum under the repealed Wakf Commissioners Act, and the eviction notice dated 28th September 2022 did not comply with Section 152E(1) of the Land Act. Following a consent order of 13th October 2025 made at the respondent's instance, the application was heard afresh, but the respondent failed to file its response; the Court deprecated the wasted judicial time and proceeded with the unopposed application. Applying the twin principles in Trust Bank Ltd v Investech Bank Ltd, the Court found a single bona fide ground sufficient for arguability and held that eviction would render the appeal nugatory since the loss of the investment could not be compensated in damages. The application was allowed in terms of prayers (b) and (d); a preliminary objection raised as disguised grounds of appeal was deferred to the full hearing. Costs abide the 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 an arguable appeal for purposes of rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether the appeal will be rendered nugatory if stay of execution or injunctive relief is not granted pending the hearing of the appeal
  3. 3.Whether the Preliminary Objection dated 15th September 2025 should be determined at this interlocutory stage

Key legal issues

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01

Arguability of the intended appeal under rule 5(2)(b)

Holding

The grounds on the validity of the respondent's suit, including alleged lack of authority of the respondent's Secretary and non-compliance with Section 152E(1) of the Land Act, were neither idle nor frivolous, establishing the first limb.

Reasoning

The Court perused the Memorandum of Appeal and found that the intended grounds - that the respondent's Secretary alone could not file suit, swear the verifying affidavit or appoint advocates for a body corporate, and that the eviction notice was issued contrary to mandatory provisions of Section 152E(1) of the Land Act - deserved consideration at the hearing of the main appeal. It deliberately avoided definitive merits findings.

p. 5
02

Whether the appeal would be rendered nugatory absent stay or injunctive relief

Holding

The applicant demonstrated the nugatory limb because eviction would destroy investment on the suit property which the respondent did not show it could compensate by damages.

Reasoning

The Court accepted that if the eviction notice were later found to have been issued unlawfully and the applicant were evicted, the investment would likely go to waste or benefit a third party, and the respondent had not demonstrated capacity to compensate in damages. Loss of a building, tenants' clientele and a place of worship could not be adequately quantified in damages, making the appeal nugatory if evicted.

p. 5
03

Treatment of the applicant's Preliminary Objection on the interlocutory application

Holding

The Preliminary Objection raised the same issues as the grounds of appeal and could not be determined at this stage; the Court lacked power to make definitive findings of merit on a rule 5(2)(b) application.

Reasoning

The Court observed that the points of objection were grounds of appeal in the guise of a preliminary objection. Since arguability is the only merits-related inquiry on such an application, the Court is divested of power to make definitive findings on the grounds raised; these must await the full hearing of the appeal.

p. 4
04

Non-compliance by the respondent with the consent order of 13th October 2025

Holding

The respondent, having instigated the fresh hearing of the application, failed to file its replying affidavit and submissions as agreed, and the Court deprecated that conduct while proceeding to determine the unopposed application.

Reasoning

The respondent's application of 6th August 2025 had led to a consent order setting aside the proceedings of 16th June 2025 and providing for the fresh filing of pleadings and submissions. The respondent did not comply, wasting judicial time. The Court noted that the ruling was written on the footing of that non-compliance, with the application effectively unopposed.

p. 2

Legal principles established

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  • An application under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay or injunctive relief.
  • A single bona fide ground of appeal suffices to satisfy the arguability limb of rule 5(2)(b); an arguable appeal need not necessarily succeed, only not be frivolous.
  • A court determining a rule 5(2)(b) application must not make definitive findings on the merits of the intended appeal.
  • In assessing whether an appeal will be rendered nugatory, the Court weighs the conflicting interests of both parties, and each case is determined on its own merits.
  • Points of objection that are in substance grounds of appeal dressed as a preliminary objection cannot be determined on an interlocutory stay application.

Court orders

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  1. 1.Order of injunction restraining the respondent, its officers, agents, employees, assigns or any person acting for them from selling, transferring, leasing, charging, demolishing, disposing of or in any manner dealing with the suit property pending the hearing and determination of Mombasa Court of Appeal Civil Appeal No. E039 of 2025
  2. 2.Order of stay of execution of the Judgment and Decree delivered on 19th December 2024 and all consequential decree and orders ensuing therefrom pending the hearing and determination of Mombasa Civil Appeal No. E039 of 2025
  3. 3.Costs of the application to abide the outcome of the 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 Cause No. E034 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunctive relief and stay of execution pending appeal)

Relief refused

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Determination of the merits of the Preliminary Objection dated 15th September 2025

The Court held that the points of objection were in substance grounds of appeal and that on a rule 5(2)(b) application it cannot make definitive findings on the merits; they must await the hearing of the main appeal

p. 4

Priority hearing of the Record of Appeal (prayer e)

The application was allowed only in terms of prayers (b) and (d); no order granting priority was made

p. 5

Costs

Costs of the application shall abide the outcome of the 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.

The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
p. 5Twin principles under rule 5(2)(b)
Accordingly, the Notice of Motion dated 24th March 2025 is hereby allowed as prayed in terms of prayers (b) and (d)
p. 5Disposition - application allowed
That pending hearing and determination of Mombasa Civil Appeal No. E039 of 2025, there be and is hereby issued an order of stay of execution of the Judgement and Decree delivered on 19th December 2024 and all consequent decree and order ensuing therefrom.
p. 6Final orders - stay of execution granted
Costs of the application shall abide the outcome of the appeal.
p. 6Costs order

Issues in the judgment

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minor

The consent order provided that the ruling be delivered on 10th April 2026, but the judgment is dated and delivered on 24th April 2026, past the agreed date.

minor

The ruling was reserved for 30th January 2026 but was in fact delivered on 24th April 2026 after the consent setting-aside of the earlier proceedings.

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, "Kabundu Holdings Limited v Wakf Commissioner of Kenya (Civil Appeal (Application) E039 of 2025) [2026] KECA 752 (KLR)", Case Analysis (2026). Civil Appeal No. E039 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/752/eng@2026-04-24

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