Interspar Ltd v Arm Cement PLC (In Liquidation) (Civil Application E039 of 2025) [2026] KECA 1239 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block execution of a judgment against Interspar Limited, holding that losing a review application doesn't unlock stay-of-execution powers.
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 from the refusal of review is arguable
- 2.Whether, if successful, the intended appeal would be rendered nugatory unless the stay and related orders sought are granted
- 3.Whether this Court has jurisdiction under rule 5(2)(b) to stay execution of the subordinate court's judgment and decree and the High Court's judgment of 15th May 2025
- 4.Whether a ruling dismissing an application for review is a negative order incapable of execution or stay
Key legal issues
#Twin limbs of rule 5(2)(b)
The intended appeal is arguable but the nugatory limb is not satisfied, so the application fails
The court restated the settled principles from Stanley Kang'ethe Kinyanjui v Tony Ketter: an applicant must show a bona fide arguable ground and that the appeal would be rendered nugatory without the orders. Both must be satisfied conjunctively. Arguability was found in the challenge to the treatment of the consent order, but the nugatory limb failed because the impugned ruling was a negative order with no nexus to the decree being executed.
Scope of rule 5(2)(b) jurisdiction
The Court cannot stay execution of the magistrate's court judgment or the High Court judgment of 15th May 2025 because the notice of appeal is directed solely at the ruling dismissing review
Jurisdiction under rule 5(2)(b) attaches to the decision intended to be appealed from. Prayers for stay of the subordinate court's decree and stay of proceedings in the subordinate and High Courts fell outside that scope, and the Court has no jurisdiction to grant them. The Court also deprecated the crafting of prayers seeking ex parte orders pending inter partes hearing as contrary to its Rules and practice.
Election between appeal and review
Having elected to pursue review of the 15th May 2025 judgment to its conclusion, the applicant could not, through an appeal from refusal of review, seek to stay or reopen that judgment
Section 80 of the Civil Procedure Act and Order 45 Rule 1 allow review of a decree or order from which no appeal has been preferred. Relying on Otieno, Ragot & Company Advocates v National Bank of Kenya Limited and William Karani & 47 Others v Wamalwa Kijana, the court held that once review is elected, the applicant cannot simultaneously keep an appeal open or use an appeal from refusal of review to collaterally attack the merits of the judgment.
Nature of a refusal of review
A ruling dismissing an application for review is a negative order incapable of execution and incapable of being stayed
The decision impugned before the Court was a ruling dismissing review. Such an order neither commands nor restrains any act; apart from costs, nothing arises from it capable of execution or stay. The decree being executed flowed from the subordinate court proceedings and the High Court judgment affirming them, so the required nexus between the impugned ruling and the relief sought was absent.
Legal principles established
#- An application under rule 5(2)(b) must satisfy both the arguable-appeal and nugatory limbs conjunctively before relief can issue
- The Court of Appeal's jurisdiction under rule 5(2)(b) is predicated on a notice of appeal and confined to the decision intended to be appealed from
- The statutory scheme of review contemplates an election between appeal and review; a litigant cannot pursue both remedies in respect of the same decision
- An order dismissing an application for review is a negative order incapable of execution or stay
Court orders
#- 1.The Notice of Motion dated 27th January 2026 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani
- MILIMANI HCCA E007 OF 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, read with sections 3A and 3B of the Appellate Jurisdiction Act and Articles 40, 43, 47, 48 and 164 of the Constitution
Relief refused
#Stay of execution of the default judgment and decree in MILIMANI MCCC E3638 of 2023
This Court's jurisdiction under rule 5(2)(b) is confined to the decision intended to be appealed from, namely the ruling dismissing the review application; there is no jurisdiction to stay the magistrate's court judgment
Stay of execution of the High Court ruling of 15th January 2026
The ruling dismissing review is a negative order incapable of execution or stay
Stay of the High Court judgment of 15th May 2025
Having elected review, the applicant cannot, through an appeal from refusal of review, obtain a stay of the substantive judgment
Injunction restraining execution, attachment, sale or auction and access to the Kshs. 650,000 security
The requisite nexus between the impugned ruling and the relief sought is absent
Stay of further proceedings in MILIMANI HCCA E007 of 2024 and MILIMANI MCCC E3638 of 2023
Beyond the scope of rule 5(2)(b) jurisdiction and the notice of appeal relied upon
Costs
The Notice of Motion dated 27th January 2026 is dismissed with costs to the respondent
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.
In the end, although we are satisfied that the intended appeal is arguable, we are not persuaded that the applicant has satisfied the nugatory limb under rule 5(2)(b). Since the two limbs must be established conjunctively, the application cannot succeed.
Accordingly, the Notice of Motion dated 27th January 2026 is hereby dismissed with costs to the respondent.
This Court's jurisdiction under rule 5(2) (b) is predicated upon the existence of a notice of appeal and is confined to the decision intended to be appealed from.
Such an order is, by its nature, a negative order. It neither commands nor restrains the doing of any act. Save for the issue of costs, there is therefore nothing arising from that ruling capable of execution or of being stayed by this Court.
This statutory scheme contemplates an election between the remedies of appeal and review and does not permit a litigant to pursue both remedies in respect of the same decision.
It is well known to the applicant’s advocate that this Court’s Rules do not provide for, and it has never been the practice of this Court to grant ex parte orders pending inter partes hearing of applications. We deprecate this mushrooming practice.
Issues in the judgment
#Discrepancy in the date of the High Court judgment sought to be reviewed: the judgment bears 15th May 2025 but the impugned ruling and documents repeatedly refer to 29th May 2025; the court could not conclusively reconcile the inconsistency
The judgment describes the originating subordinate court suit as Milimani CMCC No. E3638 of 2022 in paragraph 3, but the prayers and later paragraphs refer to MILIMANI MCCC E3638 OF 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Interspar Ltd v Arm Cement PLC (In Liquidation) (Civil Application E039 of 2025) [2026] KECA 1239 (KLR)", Case Analysis (2026). Civil Application (Nairobi) arising from Notice of Motion dated 27th January 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1239/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.