Red Kaka Ltd v Vivo Energy Kenya Ltd (Formerly Known as Kenya Shell Limited) & 3 others (Civil Application E482 of 2025) [2026] KECA 1281 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect Red Kaka's land because money can compensate for property loss, dismissing its stay and injunction application with costs.
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, unless the stay of execution and injunction pending appeal are granted, the intended appeal, if successful, will be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The applicant's ground that there was no legal basis for the finding that it acquired title by fraud was not frivolous, so the intended appeal was arguable.
The court restated the settled principle that an arguable appeal is not one that must ultimately succeed but one raising at least a single bona fide issue deserving full consideration. The applicant's challenge to the trial court's finding of fraud in the acquisition of its title met that threshold, so the first limb of the Kang'ethe Kinyanjui test was satisfied.
Nugatory aspect / whether the appeal would be rendered nugatory
The applicant failed to establish the nugatory limb; land is capable of monetary compensation and no evidence showed alienation or inability of the 1st respondent to compensate.
Applying the nugatory test, the court found no indication that the 1st respondent was alienating the suit property nor any demonstration that it would be unable to compensate the applicant if the appeal succeeded. Since land can be valued and compensated in monetary terms, loss of the property would not render a successful appeal nugatory. Because both limbs must be satisfied, the application failed despite arguability.
Legal principles established
#- The requirements for stay of execution or injunction pending appeal are that the intended appeal is arguable and that, unless the orders are granted, the appeal if successful will be rendered nugatory; both limbs must be satisfied.
- An arguable appeal need not be one that must succeed; it suffices that it raises at least a single bona fide issue deserving full consideration on appeal.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.Dismissal of the applicant's Notice of Motion dated 5th August 2025 seeking stay of execution and injunction pending appeal
- 2.Costs of the application awarded to the 1st and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Civil Case No. 766 of 2015
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal to grant stay of execution and injunction pending appeal (rule invoked via Notice of Motion); no specific constitutional/statistical provision stated in the judgment
Relief refused
#Injunction pending appeal restraining the respondents from interfering with the applicant's occupation, ownership, use and enjoyment of LR. No. 209/405/8 and subdivisions LR. No. 209/405/10 and LR. No. 209/405/11
The applicant satisfied only the arguability limb but failed the nugatory limb; no evidence that the 1st respondent was alienating the property or unable to compensate the applicant
Stay of execution of the judgment of the Environment and Land Court delivered on 25th June 2025
The applicant was required to satisfy both limbs of the test and did not establish that the appeal would be rendered nugatory
Costs
The Notice of Motion dated 5th August 2025 is dismissed with costs to the 1st and 4th 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.
The twin perquisites in this regard are firstly, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the intended appeal, if successful, will be rendered nugatory.
an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona fide issue that deserves full consideration on appeal
Land is a commodity that can be valued and compensated in monetary terms, and we are therefore not satisfied that the applicant’s appeal will be rendered nugatory in the event judgment is given in its favour.
The applicant was required to satisfy both limbs and has not, and the Notice of Motion dated 5th August 2025 is accordingly dismissed with costs to the 1 st and 4th respondents.
Issues in the judgment
#The supporting affidavit is described as sworn on 5th August 2015, which conflicts internally with the application itself dated 5th August 2025 and the judgment delivered 25th June 2025; likely a typographical error for 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Red Kaka Ltd v Vivo Energy Kenya Ltd (Formerly Known as Kenya Shell Limited) & 3 others (Civil Application E482 of 2025) [2026] KECA 1281 (KLR)", Case Analysis (2026). Civil Application (Notice of Motion dated 5th August 2025) in intended appeal from ELC Civil Case No. 766 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1281/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.