Tom Owiny v Patel Ravji Lalji & another [2020] KECA 105 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt a property injunction, confirming that a stay applicant must win on two tests, not just one.
What this practically means
#Executive summary
#Key legal issues
#The test for stay under Rule 5(2)(b) of the Court of Appeal Rules
The applicant must establish both that the intended appeal is arguable and that it would be rendered nugatory absent a stay; both limbs must be satisfied
The court restated the classic test from Trust Bank Limited vs Investech Bank Ltd: jurisdiction under Rule 5(2)(b) is original and discretionary, and the applicant must show a first that the appeal or intended appeal is not frivolous and secondly that a stay is needed to prevent the appeal being rendered nugatory. Both limbs are assessed against the facts and circumstances of each case.
Arguability of the intended appeal
The intended appeal was arguable on the questions whether the respondents paid the full purchase price and what remedy flows from non-payment, but arguability alone is insufficient
The court found the contested issues of payment of the balance of the purchase price and the effect of non-payment raised serious questions deserving consideration. However, applying the caution from Dennis Mogambi Mang'are, an arguable appeal is not one that must necessarily succeed; the applicant still had to satisfy the second, nugatory limb.
Whether the intended appeal would be rendered nugatory
The appeal would not be rendered nugatory because the Judge's order preserving the suit premises pending trial protected both parties and was not prejudicial to the applicant
The court noted that although the respondents were in possession, they were restrained from selling, transferring or altering the suit premises until trial. That preservation order was advantageous to the applicant and not prejudicial to his rights pending appeal. Having failed the nugatory limb, the application could not succeed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin limbs of arguability and nugatory aspect; failure of either limb is fatal to the application
- An arguable appeal need not necessarily succeed; it is enough that it raises a serious question of law or a reasonable argument deserving consideration
- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or the decision is clearly wrong and results in injustice
Court orders
#- 1.The application for stay of the ruling and order of Okongo, J. dated 18th May 2020 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court
- ELC Case No. 114 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of the ruling and orders of the High Court pending the intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dhiman v Shah (Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR)[2025] KECA 1264 (KLR)11 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Tom Owiny v Patel Ravji Lalji & another [2020] KECA 105 (KLR)", Case Analysis (2020). Civil Appeal No. 162 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/105/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.