Bashir v Kenya Breweries Ltd & 10 others

RULING 1. By way of a Notice of Motion dated 19th January 2026 brought under Rule 5(2) (b) of this Court’s Rules, 2022, Hawa Lul Bashir (the applicant) is seeking: i. that pending the hearing and determination of the appeal, this Court be pleased to stay the judgement entered on 1/10/2025 and any other order that may be issued pursuant thereto; and ii. that costs of this application be in the cause. 2. A brief background of the dispute is that, Kenya Breweries Limited (the 1st respondent), in its Further, Further, Further Amended Plaint dated 1st August 2022, sued the applicant and the 2nd to 11th respondents for: alleged unlawful subdivision of its suit property known as Mombasa/ Block IX/133 into Mombasa/Block 1X/210, Mombasa/Block 1X/211, Mombasa/Block 1X/212, Mombasa/Block 1X/213 and Mombasa/Block 1X/214; cancellation of any other interest registered against the subdivisions; exemplary, aggravated and special damages; compensation for the encroached portions; costs; and interest. 3. In the plaint, the 1st respondent gave a history of how it came into possession of the suit property from the time the rst lease was issued in the year 1948, resting with the transfer and registration in its name in the year 1992. In the year 1995, the 1st respondent got to know of the subdivisions over the suit property without its consent, and it thus prayed that the said subdivisions should be declared illegal, null and void. 4. In its defence, the 2nd respondent contended that despite being given a 99-year lease over the suit property from 1st April 1948, the 1st respondent failed to register it, and it remained vested with the 2nd respondent. It further contended that, even with the court order in Miscellaneous Civil Case No. 142 of 1971 in which the suit property was to be sold to the 1st respondent, no sale agreement was signed by it and the Receiver of its predecessor, East African Breweries Limited (EABL). The 2nd respondent stated that the suit property no longer existed after the subdivisions and, hence, the title document relied upon by the 1st respondent was invalid as it was issued after the re-planning and issuance of titles over the subdivisions in 1991. 5. As for the applicant, her defence was that the re-planning which gave rise to the allocation took place between 25th September 1986 and 21st January 1998, which was the time when the 1st respondent’s cause of action arose and, therefore, its claim was time barred. She further stated that she had no claim over the suit property as it was dierent and distinct from the land parcels Mombasa/Block IX/211 and Mombasa/Block IX/212 owned by her. 6. After consideration of the evidence before court, the learned Judge (Kibunja, J.) held that there existed a subsisting 99-year lease dated 8th May 1953 over land measuring 1.55 acres, which was to be hived o Mombasa/Block IX/115 by the 2nd respondent’s predecessor and leased to the 1st respondent’s predecessor, EABL, and whose term was yet to expire. The Court held that it was on the basis of the said agreement of 8th May 1953, that the 2nd Respondent hived o a portion of Mombasa/Block IX/115 measuring 1.55 acres which became the suit property, Mombasa Block/IX/133. It was held that there was deliberate concealment of material information on the part of the 2nd respondent on the re-planning and subdivisions of the suit property before 1992 without its (1st respondent) consent, and/or approval; and that the purported transfers of the subdivisions to third parties were illegal, unlawful and incapable of passing a good title. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1765/eng@2026-09-25 2

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7. The learned Judge issued nal orders that: the certicate of title/lease in respect of the suit property Mombasa/Block IX/133 was valid and still in force; the purported re-planning and subdivisions of the suit property to form Mombasa/Block IX/210 to 214 was illegal, null and void ab initio; vacant possession of the suit property including its sub-divisions by the applicant and the 6th respondent within 90 days and, in default, eviction be executed; an order of permanent injunction be issued against the applicant, 2nd to 6th respondents from interfering with the suit property; exemplary and aggravated damages assessed at Kshs.1,000,000 be paid by the 2nd respondent; special damages of Kshs. 911, 800 as pleaded and proved; costs; and interest. 8. Aggrieved by that decision, the applicant led a Notice of Appeal and the present Motion, and in her supporting adavit, she deposed that there is a likelihood that the 1st respondent will move to enforce the judgment of the trial court and, thus, render the appeal nugatory as its enforcement would deny her the right of ownership through an eviction process. She further stated that there are lawful businesses operating on the suit property duly licenced and form part of her possession and use of the suit property; that the resultant eviction would disrupt and/or terminate the said businesses, thereby occasion her irreparable loss and damage, and expose her to statutory penalties and loss of livelihood; that this would subject her to substantial loss; and that, unless a stay of execution of the impugned judgment is granted, the appeal would be rendered nugatory. 9. Opposing the application, the 1st respondent led a replying adavit sworn by Karen Mate – Gitonga, its Legal Counsel on 16th February 2026. She basically recounted the history that gave rise to the dispute and, in addition, deposed that the applicant elected not to adduce evidence and participate in the trial; that, therefore, the instant application is meant to re-open the defence case or to tender further evidence thereafter; that, as a consequence, failure of the applicant to adduce evidence at trial rendered its (1st respondent) case uncontroverted; and that the Judge properly determined the matter on its merit. 10. As to the arguability of the appeal, the 1st respondent contends that the applicant’s intended appeal does not challenge any specic error of law or misapprehension of evidence by the trial court, but that it is premised on matters that were never placed before the trial court or subjected to evidentiary scrutiny, being the possession of business licences. 11. As to the nugatory limb, the 1st respondent contends that grant of the orders sought would deny it the fruits of a lawful judgement while sanctioning continued trespass on the suit property; and that the balance of convenience tilts in favour of allowing execution to proceed as ordered by the trial court. 12. In conclusion, the 1st respondent urges that the applicant has failed to satisfy the two limbs required under Rule 5(2) (b) of this Court’s Rules; and that the application is devoid of merit and ought to be dismissed with costs to it. 13. We heard this application on 4th May 2026. In attendance were learned counsel: Ms. Okumu for the applicant; Ms. Ngonde for the 1st respondent; Ms. Jadi for the 2nd respondent; and Mr. Wafula for the 5th respondent. The 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th respondents did not appear or participate in the application despite proper service with a hearing notice. 14. Ms. Okumu highlighted the applicant’s submissions dated 5th March 2026. She submitted that after the lease agreement between the 1st and 2nd respondents did not materialise, the suit property remained vested in the 2nd respondent who subdivided it in the year 1998; that the applicant purchased two suit plots after carrying out due diligence; and, that alone was an arguable ground that should be interrogated at the hearing of the main appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1765/eng@2026-09-25 3

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15. As to the whether the appeal would be rendered nugatory, it was submitted that the applicant is currently in occupation of the suit plots; that the 1st respondent has not demonstrated the ability to compensate the applicant in the event that she is evicted and appeal is determined in her favour. We were urged to nd that the application meets the twin tests under Rule 5(2) (b), and that it should be allowed. 16. On the 1st respondent’s part, Ms. Ngonde highlighted the submissions dated 28th April 2026. It was submitted that it (1st respondent) had not acknowledged that any party was in possession of the suit property; and that it was not true that the applicant had been in occupation of the suit plots as alleged. It reiterated that the applicant, having failed to appear in court and defend her alleged occupation, she cannot now bring new evidence at the appellate stage and base the stay application on material not presented before the trial court. The 1st respondent relied on the Supreme Court decisions in Odinga & 5 Others vs. Independent Electoral and Boundaries Commission & 3 Others (2013) KESC 6 (KLR); and Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 Others (2018) KESC 62 (KLR) for the proposition that new evidence cannot be introduced at the appeal stage. 17. Counsel submitted that the appeal would not be rendered nugatory if the orders sought are not granted since the applicant was given sucient notice to remove the structures on the suit portion she allegedly occupies. The decision of this Court in Karolyne Mwatha Mburu & 2 Others vs. Athi Water Services Board & Another (2019) KECA 97 (KLR) was cited where it was held that an applicant has to demonstrate that the intended appeal will be rendered nugatory, but that in this instance, the applicant had failed to establish this threshold. 18. Ms. Jadi for the 2nd respondent stated that her client did not wish to participate in the application. 19. We have considered the application, the response by the 1st respondent in opposition to the application, the submissions made and the relevant law. The singular issue that commends itself for determination is whether the twin principles under Rule 5(2) (b) of this Court’s Rules have been satised. In our view, this being a Rule 5(2)(b) application, the application will turn upon a consideration of the issues as established by this Court in the case of Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR, being rstly, an applicant has to satisfy that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but suce it to state that it is an appeal that is not frivolous. Secondly, an applicant has to demonstrate that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory. See also Githunguri vs. Jimba Credit Corporation Ltd. (No. 2) (1988) KLR 838. 20. On what constitutes an arguable appeal, we are minded that even a single bona de ground of appeal, will render the appeal arguable as was held by this Court in Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd & 2 others (2009) KECA 201 (KLR); and Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. 21. From the thirteen grounds of appeal outlined in the draft Memorandum of Appeal dated 22nd December 2025 annexed to the application, the applicant is challenging the ndings of the trial court, inter alia: that the certicate of lease/title being held by the 1st respondent is valid whereas the resultant subdivisions on which she holds the two plots are illegal, null and void; that the 1.55 acres of the 1st respondent were in fact not subdivided and registered in the 1st respondent’s name, and that the 1st respondent only lost 0.082 acres; and that the 1st respondent’s interest in the suit property had crystalized without registration of the original lease and the sub-lease thereafter with the Mombasa Titles Registry. We nd that these are arguable grounds worthy of consideration at the hearing of the main appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1765/eng@2026-09-25 4

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22. As to the second limb, which is whether the appeal will be rendered nugatory absent stay, the Court has to consider the conicting claims of both parties, all bearing in mind the circumstances prevailing in this case. The 1st respondent counsel’s assertion that the applicant is currently not in occupation of the suit property is discounted by the fact that the trial court conducted a site visit and found the applicant and others in occupation of the suit property. Further, a look at the plaint explains that the 1st respondent sought vacant possession of the suit property, which means that the applicant was still in possession of a portion thereof. Again, in the ELC judgment, the learned Judge ordered eviction of the applicant and 90 days were given for her to vacate. Therefore, for the 1st respondent's advocate to now argue that the applicant did not advance a defence to the eect that she was in occupation of part of the suit land, and is raising it now at appeal stage, is untenable. The fact is that, if the applicant is evicted, she stands to be prejudiced, as she has even put up some construction on the land. 23. In the end, we nd and hold that the applicant has established the twin principles under Rule 5(2)(b), which principles must be discharged conjunctively. Accordingly, we allow the application and grant orders that, pending the hearing and determination of the intended appeal, there shall be a stay of the Judgement and/or decree in Mombasa ELC Case No. 46 of 1996 dated and delivered by Kibunja, J. on 1st October 2025. Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. F. TUIYOTT …………………............….. JUDGE OF APPEAL G. W. NGENYE-MACHARIA …………………............JUDGE OF APPEAL S. O. OKONG’O …………………............….. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1765/eng@2026-09-25 5

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