Koinange Investments and Development Co Ltd v Ngethe & 3 others (Civil Application E758 of 2025) [2026] KECA 819 (KLR)
The bottom line
#The Court of Appeal refused to halt the transfer of a Nairobi property, ruling that money can compensate the company if its appeal later succeeds.
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
- 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory
Key legal issues
#The dual test for stay of execution pending appeal under rule 5(2)(b)
The applicant must satisfy both the arguable-appeal limb and the nugatory limb; satisfying only one limb dooms the application.
The court reiterated the settled rule from Stanley Kang'ethe Kinyanjui v Tony Ketter. It found the intended appeal arguable on the questions of variation of the 2003 order outside Order 45, inordinate delay, and authenticity of the order, but held the nugatory limb failed because the 2002 decree has been final for over two decades, the transfer is reversible and compensable in damages, and the purchase price has already been deposited in court.
Whether a transfer in execution of a long-standing decree renders an intended appeal nugatory
No. Where the transfer merely gives effect to a valid decree that has withstood decades of challenges, and the applicant's interest is largely financial with the purchase price already deposited in court, damages are an adequate remedy.
The court noted that the decree of 14th October 2002 has never been set aside and that the applicant's challenges target interlocutory and consequential orders rather than the foundational judgment. The key question is whether what is to be stayed can be reversed or compensated by damages; here it can, so no substantial loss was shown.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory unless stay is granted; satisfying only one limb is insufficient.
- Where the decree being enforced is long-standing and the steps taken merely give effect to it, a transfer effected in execution is not necessarily irreversible, as it can be rescinded and the applicant compensated in monetary terms.
Court orders
#- 1.The application dated 17th December 2025 seeking stay of execution of the High Court ruling of 17th March 2025 is dismissed
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani, Commercial Division
- HCCC No. 3164 of 1995
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending intended appeal)
Relief refused
#Temporary stay of execution of the High Court ruling of 17th March 2025 authorising the Deputy Registrar to execute transfer of L.R. No. 209/9099, Nairobi
The applicant satisfied only the arguability limb and not the nugatory limb; substantial loss was not demonstrated and damages would be an adequate remedy
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 trite law that in applications of this nature, the applicant must demonstrate, first, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the appeal will be rendered nugatory.
The key question, in our view, is whether what is sought to be stayed can be reversed or adequately compensated by damages.
In the end, and since the applicant has only satisfied one of the two limbs necessary for grant of the orders sought 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, "Koinange Investments and Development Co Ltd v Ngethe & 3 others (Civil Application E758 of 2025) [2026] KECA 819 (KLR)", Case Analysis (2026). Civil Application No. Nai. E### of 2025 (Notice of Motion dated 17th December 2025 under rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/819/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.