Hussein v Habib & 3 others (Civil Application E032 of 2023) [2024] KECA 1217 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a stay-of-proceedings bid, confirming applicants must prove both an arguable appeal and concrete harm — vague applications fail with costs.
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 applicant demonstrated an arguable appeal so as to warrant a stay of proceedings pending the hearing and determination of the appeal
- 2.Whether the appeal, if not stayed, would be rendered nugatory
Key legal issues
#Whether the applicant demonstrated an arguable appeal
The court found that the applicant failed to raise any arguable ground; the appeal concerned an interlocutory injunctive order whereas the main suit concerned ownership, which are different and distinct issues, and it was not for the court to determine the merits of the appeal at this stage.
The applicant attached no draft memorandum of appeal and set out no grounds of appeal in the supporting affidavit, leaving the court to glean grounds from the motion and affidavit. The court distinguished the interlocutory appeal from the substantive ownership question in the ELC suit, held the two issues different and distinct, and concluded no arguable ground was raised on the first limb of the twin principle.
Whether the appeal would be rendered nugatory absent a stay of proceedings
Even assuming the first limb, the applicant failed to demonstrate in any way how the intended appeal would be rendered nugatory if the proceedings were not stayed.
The court noted it had already granted a stay of the trial court's ruling and orders, so execution was already stayed. The applicant advanced no demonstration of nugatory-ness; the respondents argued the existing stay of execution orders protected the applicant from any injustice while the trial continued.
Legal principles established
#- To succeed on an application under rule 5(2)(b), an applicant must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay
- An applicant need not show multiple arguable points; one suffices, and the applicant need not show that the arguable point would succeed
- Stay of proceedings is a discretionary remedy to be exercised sparingly and only in exceptional circumstances
Court orders
#- 1.The applicant's notice of motion dated 17th October 2023 seeking a stay of proceedings pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC No E300 of 2022
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules 2010 (now 2022 Rules)
Relief refused
#Stay of proceedings in ELC No E300 of 2022 pending the hearing and determination of Appeal No E544 of 2023
The applicant failed to demonstrate both limbs of the rule 5(2)(b) test - neither an arguable appeal nor that the appeal would be rendered nugatory absent a stay
Costs
Application dismissed with costs to the respondents
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.
To succeed in an application under rule 5 (2)(b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in several of our decisions namely: i. An applicant must demonstrate that he has an arguable appeal; and ii. That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, order, or proceedings are not stayed.
We are not satisfied that the grounds as set out in motion raise any arguable ground and accordingly, it is our finding that the applicant has not satisfied the first limb that he has an arguable appeal.
The applicant having failed to demonstrate the twin principles his application is dismissed with costs to the respondents.
Issues in the judgment
#The judgment cites David Morton Silverstein v Atsango Chesoni with two different years, [2002] eKLR in the applicant's submissions and [2000] eKLR when the court applies it
The judgment does not name the parties in the title or coram; the applicant and respondents are referred to only descriptively, making party identification incomplete
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein v Habib & 3 others (Civil Application E032 of 2023) [2024] KECA 1217 (KLR)", Case Analysis (2024). Court of Appeal Case No E544 of 2023 (application dated 17th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1217/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.