Exclusive Estates Ltd v Telkom Kenya Ltd & 3 others (Civil Appeal (Application) E747 of 2025) [2026] KECA 1653 (KLR)
The bottom line
#The Court of Appeal refused to freeze Kshs. 15 billion in land compensation, holding money can repay any loss if the 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 (first limb of the Rule 5(2)(b) test).
- 2.Whether the intended appeal would be rendered nugatory if the orders sought are not granted (second limb of the Rule 5(2)(b) test).
- 3.Whether, the impugned order being a negative order dismissing the suit, the Court nonetheless has jurisdiction to grant an injunction or restore the status quo ante pending appeal.
- 4.Whether interlocutory orders in the nature of mandatory injunctions, directed in part against third parties not before the Court (including the Ministry of Sports, Culture & Heritage), can issue at an interlocutory stage.
Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b).
Yes. A single bona fide arguable ground suffices: the High Court's alleged failure to consider the doctrine of lis pendens and the Court of Appeal's judgment in Nairobi Civil Appeal No. 135 of 2013 reinstating the caveat over the suit property.
The court restated that an arguable appeal need not necessarily succeed but must not be frivolous, and that a single bona fide arguable ground warrants ventilation before the Court. The applicant pointed to the High Court's alleged failure to consider lis pendens and the 2013 judgment reinstating the caveat. Without making definitive findings that could embarrass the bench seized of the main appeal, the court was satisfied the intended appeal was arguable. Because the twin limbs are conjunctive, however, arguability alone could not sustain the application.
Whether the intended appeal would be rendered nugatory if the orders sought are declined.
No. Success on appeal would merely reinstate the suit for hearing; the suit property has been compulsorily acquired and developed, and any loss is compensable in damages, the applicant having not shown the 1st respondent could not pay.
The nugatory limb asks whether what is sought to be stayed is irreversible or, if not, whether damages will reasonably compensate the aggrieved party. If the appeal succeeded, the legal consequence would merely be reinstatement of the suit for hearing on its merits. The suit property had already been compulsorily acquired by the Ministry of Sports, Culture & Heritage and the Talanta Sports Stadium project undertaken thereon. Any loss was compensable in damages, and the applicant neither alleged nor demonstrated that the 1st respondent would be unable to satisfy any decree. The second limb therefore failed, and the conjunctive test doomed the application.
Whether a negative order dismissing a suit is amenable to stay or injunction under Rule 5(2)(b).
A negative order is ordinarily incapable of execution and not amenable to stay, but its negative character does not, without more, deprive the Court of jurisdiction to grant an injunction pending appeal.
The impugned ruling dismissed the applicant's suit — a negative order which the court accepted is ordinarily incapable of execution and therefore not amenable to an order of stay. It nonetheless held, consistently with its recent decision in Adero & 3 Others v Douglas & 3 Others, that the negative character of the impugned decision does not, without more, deprive it of jurisdiction to grant an injunction under Rule 5(2)(b), since the motion also sought an injunction and restoration of the status quo ante. Jurisdiction therefore existed, but the application still had to satisfy both limbs and failed on the nugatory aspect.
Whether mandatory interlocutory orders affecting non-parties can issue pending appeal.
No. The orders sought were mandatory in nature and directed in part against the Ministry of Sports, Culture & Heritage, a non-party responsible for paying the Kshs. 15 billion compensation; they could not issue without affording such persons a hearing.
The relief sought was, in substance, mandatory: restoration of the status quo ante and preservation of compensation monies. The court observed that the orders were directed, in part, against third parties — including the Ministry of Sports, Culture & Heritage, responsible for paying the Kshs. 15,000,000,000 compensation — who were not before the Court. Granting them would affect the rights and obligations of non-parties without affording them a hearing and would effectively reverse actions already undertaken under the compulsory acquisition process. Consistent with Adero, this was not an exceptional case warranting such interlocutory relief.
Legal principles established
#- An applicant under Rule 5(2)(b) of the Court of Appeal Rules must satisfy both the arguability and nugatory limbs, which are conjunctive; satisfying only one is insufficient.
- The negative character of the decision impugned (such as the dismissal of a suit) does not, without more, deprive the Court of jurisdiction to grant an injunction pending appeal under Rule 5(2)(b).
- The nugatory inquiry turns on whether what is sought to be stayed is irreversible or, if not, whether damages will reasonably compensate the aggrieved party.
- Interlocutory relief in the nature of a mandatory injunction or restoration of the status quo ante will not be granted at an interlocutory stage where it would affect the rights of persons or entities not before the Court or reverse actions already undertaken, such as a completed compulsory acquisition.
Court orders
#- 1.The Notice of Motion dated 4th November 2025 is dismissed, the applicant having failed to meet both limbs of Rule 5(2)(b) of the Court of Appeal Rules.
- 2.Costs of the application shall abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, read with Sections 3A and 3B of the Appellate Jurisdiction Act and Section 3(1) of the Judicature Act
Relief refused
#Restoration of the status quo ante obtaining before the ruling of 17th January 2025, including preservation of the sixty acres comprised in LR No. 7656, Ngong Road pursuant to the caveat directed in Nairobi Civil Appeal No. 135 of 2013.
The applicant failed the nugatory limb; the compulsory acquisition had been completed and the Talanta Sports Stadium built; the orders would affect non-parties; this was not an exceptional case for interlocutory relief.
Injunction restraining the 1st and 2nd respondents from seeking payment of Kshs. 11,400,000,000, being the value of the sixty acres awarded to the 1st respondent in ELC Petition No. 11 of 2021.
The application failed the conjunctive nugatory limb, and the orders were directed in part against the Ministry of Sports, Culture & Heritage, a non-party responsible for payment of the compensation.
Deposit of Kshs. 11,400,000,000 out of the decretal amount of Kshs. 15,000,000,000 into a joint interest-earning escrow account should the decretal sum be settled before the appeal is determined.
This consequential relief fell with the motion, the applicant having failed to demonstrate that the appeal would be rendered nugatory; damages were held to be an adequate remedy.
Direction that the 1st respondent keep the applicant's advocates regularly informed of progress towards settlement of the decretal sum and furnish confirmation of any payments made towards satisfaction of the decree.
This ancillary relief fell with the dismissal of the motion on the second limb of Rule 5(2)(b).
Costs
Costs of the application shall abide the outcome of the appeal.
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.
As the applicant is required to meet both limbs of Rule 5(2)(b) of this Court’s Rules, the application fails and is dismissed.
Costs of the application shall abide the outcome of the appeal.
we are not persuaded that this is one of those exceptional cases warranting the grant of a stay of execution, an injunction or the restoration of the status quo ante at an interlocutory stage.
the fact that the impugned decision is a negative order does not, without more, deprive the Court of jurisdiction to grant an injunction under Rule 5(2)(b) of this Court’s Rules.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
Any loss that may ultimately be established is compensable in damages, and the applicant has neither alleged nor demonstrated that the 1st respondent would be incapable of satisfying any decree that may ultimately issue.
Issues in the judgment
#The text contains apparent transcription/OCR artifacts (e.g., 'sufier' for 'suffer', 'afirmed' for 'affirmed', 'efiect' for 'affect'); verbatim quotes have been drawn from clean passages to preserve accuracy.
The ruling does not state its own appeal/application number or a neutral citation; the motion is identified only by its date and the parties.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Exclusive Estates Ltd v Telkom Kenya Ltd & 3 others (Civil Appeal (Application) E747 of 2025) [2026] KECA 1653 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 4th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1653/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.