George Boniface Mbugua Alias George Boniface Nyanja v Mohammed Jawad Iqbal (sued As The Personal Representative of The Estate of Ghulam Rasool Janmohammed)
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs.4.98 million money judgment because it can be repaid if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The court found the applicant had raised arguable grounds concerning the assessment of mesne profits, the Kshs.1,500,000/- paid towards the purchase price, and the applicant's eviction in April 2020, which require ventilation on appeal.
Without delving into the merits of the grounds, the court reviewed the application, supporting affidavit, grounds of appeal, replying affidavit and submissions. It applied the settled principle that an arguable appeal need not succeed; it need only not be frivolous. The grounds on the assessment of mesne profits and the applicant's eviction were sufficient to cross the low arguability threshold.
Whether the appeal would be rendered nugatory if stay is denied
The nugatory limb failed because the decree is a money decree; if the appeal succeeds, the sums paid can be recovered, so execution will not render the appeal nugatory.
The court applied the principle in Kenya Industrial Estate Limited v Mwachia that whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages would reasonably compensate the aggrieved party. Since this is a money decree capable of repayment upon a successful appeal, execution does not create an irreversible situation and the second limb of the twin test fails.
Legal principles established
#- To obtain stay under rule 5(2)(b), an applicant must satisfy the twin test: an arguable appeal (not frivolous, but not necessarily one that will succeed) and that the appeal will be rendered nugatory if stay is not granted.
- A money decree which can be repaid if the appeal succeeds is not rendered nugatory by execution, so stay will ordinarily be refused.
- A single arguable ground of appeal suffices to meet the arguability threshold under rule 5(2)(b).
Court orders
#- 1.The application for stay of execution dated 9th January 2023 is dismissed
- 2.Costs to abide the outcome of the appeal
- 3.The matter to be given a priority hearing date
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 1107 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) and 42(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9
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.
- Samuel Onyango Okello & 2 others v Fin Tea Limited & 1 other[2025] KECA 1099 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "George Boniface Mbugua Alias George Boniface Nyanja v Mohammed Jawad Iqbal (sued As The Personal Representative of The Estate of Ghulam Rasool Janmohammed)", Case Analysis (2024). Application dated 9th January 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/185/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.