Bonito Properties Ltd v Bungoma Teachers Housing & Investment Cooperative Society Ltd
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs 47 million land ruling because Bonito Properties showed the appeal was arguable but not that winning later would be pointless.
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 the intended appeal, if successful, will be rendered nugatory unless stay of execution is granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable on the single ground that the trial court granted final mandatory orders at an interlocutory stage.
The Court applied the settled low threshold for arguability: a single bona fide point of law or fact sufficient to call for an answer from the respondent suffices. The applicant's contention that the trial judge injudiciously gave final orders, including a mandatory injunction and special damages, at an interlocutory stage met that threshold without needing to succeed ultimately.
Nugatory value of the appeal
The appeal was not rendered nugatory by execution because the effects of compliance are reversible and compensable in damages, and the respondent can refund the monetary decree.
Applying Kang'ethe Kinyanjui v Tony Ketter, the Court asked whether what is to be stayed is reversible or compensable by damages. The applicant's alleged financial and operational prejudice was held reversible; the decree was primarily monetary, and the respondent averred ability to refund the decretal sum, which the applicant did not rebut.
Legal principles established
#- An arguable appeal need not be one that will succeed; it suffices that it raises a single bona fide issue worthy of the Court's consideration.
- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; failure on either defeats the application.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The Notice of Motion dated 9th June 2026 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Bungoma
- Bungoma ELC Case No. E023 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELC ruling of 13th May 2026 pending the hearing and determination of the appeal
The applicant satisfied only the arguability limb and failed to demonstrate that the appeal would be rendered nugatory; the effects of execution are reversible and compensable by damages.
Stay of further proceedings in Bungoma ELC Case No. E023 of 2025 pending the appeal
The application failed on the nugatory limb, so no stay of proceedings was granted.
Costs
The Notice of Motion dated 9th June 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.
the law is settled that an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona de issue that deserves full consideration on appeal
whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved
The applicant was required to satisfy both limbs and has not, and the Notice of Motion dated 9th June 2026 is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The case number 'E525 of 2026' postdates the application date of 9 June 2026 only nominally; no contradiction, but the judgment contains typographical corruption (e.g. 'he's only granted' for 'is only granted').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bonito Properties Ltd v Bungoma Teachers Housing & Investment Cooperative Society Ltd", Case Analysis (2026). Civil Appeal (Application) E525 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2069/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.