Ibrahim Adde Group Holdings Limited v Ngahu & 3 others (Civil Application E265 of 2024) [2024] KECA 1401 (KLR)
The bottom line
#The Court of Appeal refused to pause land case proceedings, ruling that claiming large financial losses alone does not prove an appeal matters.
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 and not frivolous
- 2.Whether the intended appeal, if successful, would be rendered nugatory absent stay of the orders issued by the ELC
Key legal issues
#Twin principles governing rule 5(2)(b) applications
An applicant must demonstrate an arguable appeal and that the appeal, if successful, will be rendered nugatory absent stay; failure on either limb is fatal.
The Court restated the settled twin-principle test: first, the appeal or intended appeal must be arguable, not frivolous; second, if successful, it must be rendered nugatory absent stay. Both limbs must be satisfied. Although the Court found the grounds of appeal not frivolous, the applicant failed the nugatory limb, and the application therefore failed in its entirety.
Arguability of the intended appeal
The intended grounds - that the trial court erroneously found the applicant had not responded to the respondents' application and erred in refusing review - were not frivolous, even though the draft memorandum of appeal was not on the record.
The draft memorandum of appeal was not part of the record, but the Court deduced the intended grounds from the application, affidavit and submissions. It stressed that at the interlocutory stage it does not determine the merits, but only that the grounds are not frivolous. One arguable point suffices and success need not be shown.
Nugatory aspect and substantial loss
Substantial loss per se is not a factor in a rule 5(2)(b) application; the applicant's pleaded daily loss and claim that respondents were men of straw did not establish that the appeal would be rendered nugatory.
The Court held that the term nugatory must be given its full meaning - worthless, futile, invalid or trifling - and the test is whether what is sought to be stayed is reversible or whether damages will reasonably compensate the aggrieved party. The applicant's allegations of daily losses of Kshs. 500,000 and respondents' impecuniosity did not satisfy this test.
Legal principles established
#- To succeed on a rule 5(2)(b) application, an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted; substantial loss per se is not a factor the Court considers.
- On arguability, an applicant need show only one arguable point, and need not show that the point would succeed.
- The meaning of 'nugatory' in rule 5(2)(b) applications: the test is whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.Dismissal of the applicant's notice of motion dated 28th May 2024
- 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 (High Court), Mogeni, J.
- Not stated in the judgment
- Jurisdiction invoked
- Rules 5(2)(b), 43, 44, 45 and 49 of the Court of Appeal Rules, 2022 (interlocutory application before the Court of Appeal)
Relief refused
#Stay of further proceedings and injunction pending the hearing and determination of the intended appeal
The applicant failed to satisfy the twin principles under rule 5(2)(b): it did not demonstrate that the appeal would be rendered nugatory if the orders sought were not granted
Costs
The application was 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.
An applicant must demonstrate that they have an arguable appeal; and That the intended appeal (or appeal if already filed), if successful, will be rendered nugatory if the execution of the decree, or order of proceedings is not stayed.
Whether or not an appeal will be rendered nugatory depends on whether or not 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.
As the applicant has not satisfied the twin principles. In the end we hereby dismiss the application with costs to the respondents.
Issues in the judgment
#The draft memorandum of appeal relied on by the applicant is not part of the record; the Court deduced the grounds of appeal from the pleadings and submissions.
The case title, case number and neutral citation are not stated in the copy of the judgment supplied; only the coram and delivery date appear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibrahim Adde Group Holdings Limited v Ngahu & 3 others (Civil Application E265 of 2024) [2024] KECA 1401 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1401/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.