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Court of AppealDismissedCivil Application No. E125 of 2024

Mohamedali v Bamoto Distributors Limited (Civil Appeal (Application) E0125 of 2024) [2024] KECA 1731 (KLR)

Court of Appeal
6 December 2024
2,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to halt execution of a Kshs 7 million judgment because the applicant only proved the appeal was arguable, not that winning later would be pointless.

What this practically means

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Executive summary

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The applicant, Antony Mwendwa, sought stay of execution pending appeal under rule 5(2)(b) of the Court of Appeal Rules against a judgment of the Environment and Land Court at Mombasa delivered on 5th June 2024, which declared the respondent the registered owner of go-down on plot Mombasa/Block XV/47 following a public auction on 16th September 2021 and awarded the respondent Kshs 7,000,000 in damages for trespass. The applicant filed a Notice of Motion dated 29th June 2024 contending that the sale was illegal, that no auction was conducted, that the property was sold at an undervalue, and that the respondent was a man of straw incapable of repaying the decretal sum. The respondent opposed, stating it lawfully acquired the property since the High Court injunction was issued after the auction, and that the suit property is an immovable asset capable of being restored. The Court of Appeal (Murgor, Laibuta and Odunga, JJ.A) restated the twin conditions for relief under rule 5(2)(b): the appeal must be arguable, and the appeal must be rendered nugatory if stay is not granted. The Court found the appeal arguable on the single ground that the learned Judge relied on documents not formally produced as exhibits, holding it trite that such documents cannot be relied upon as evidence. However, on the second limb, the Court held the applicant failed to demonstrate that the appeal would be rendered nugatory, as the property is immovable and valuable, and the averment that the respondent is a man of straw was unsubstantiated. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable under rule 5(2)(b)
  2. 2.Whether the appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Nature of the Court of Appeal's rule 5(2)(b) jurisdiction

Holding

The jurisdiction is original, independent and discretionary, arising where a notice of appeal or appeal has been lodged.

Reasoning

The Court restated that the rule 5(2)(b) jurisdiction is a procedural innovation empowering the Court to preserve the subject matter of an appeal. It is exercised independently of the substantive appeal and is discretionary in nature, and only arises once an appeal or notice of appeal is on record.

p. 3
02

Conditions for relief under rule 5(2)(b)

Holding

The applicant must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; both limbs must be satisfied.

Reasoning

The Court reiterated the twin requirements from established case law. Arguability does not mean the appeal must succeed - a single bona fide issue worth consideration suffices. Nugatory-ness is assessed by whether the effect of execution would be irreversible or not reasonably compensable by damages. Both conditions must be met together.

p. 4
03

Whether the appeal was arguable

Holding

The ground that the trial Judge relied on documents not formally produced as exhibits was arguable.

Reasoning

The applicant contended the learned Judge relied on documents not produced as exhibits. The Court held it is trite that such documents, even if identified during trial, cannot be relied upon as evidence, and found this single ground arguable without needing to consider further grounds.

p. 4
04

Whether the appeal would be rendered nugatory

Holding

The applicant failed to demonstrate nugatory-ness; the suit property is immovable and valuable, and mere allegations that the respondent is a man of straw are insufficient.

Reasoning

Apart from a bare averment that the respondent is 'a man of straw', no grounds were disclosed. A successful litigant cannot be denied the fruits of judgment on such averments. The property is immovable and unlikely to change hands, and prior negotiation over its purchase showed it has quantifiable value compensable if the appeal succeeds.

p. 4

Legal principles established

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  • Documents identified by the parties but not formally produced as exhibits cannot be relied upon as evidence in reaching a judicial decision.
  • A party seeking stay of execution must show on reasonable grounds that the respondent is unlikely to repay the decretal sum; bare averments are insufficient.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 29 June 2024
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment and Land Court (ELC), Mombasa
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ELC judgment pending appeal

The applicant satisfied the arguability limb but failed to demonstrate that the appeal would be rendered nugatory if the decree were executed.

p. 4

Costs

The Notice of Motion dated June 29, 2024 dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite that documents, even if identified by the parties during the trial, but not produced as exhibits, cannot be relied upon as evidence in arriving at a judicial decision.
p. 4Admissibility - documents not produced as exhibits
A party seeking stay of execution ought to show, based on some reasonable grounds, that the respondent is unlikely to repay the decretal sum if paid over to him.
p. 4Stay of execution - nugatory-ness and repayment
In any event, an appeal need not raise a multiplicity or any number of such points, and a single arguable point is suficient to earn an applicant such a relief, subject to the satisfaction of the second condition
p. 3Arguability - single arguable point suffices
As the applicant has failed to meet the twofold threshold for grant of stay of execution pending appeal under rule 5(2) (b) of this Court’s Rules, we hereby dismiss the Notice of Motion dated June 29, 2024 with costs to the respondent.
p. 4Final orders - dismissal of the application

Issues in the judgment

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minor

The respondent's director is named in the cause title/role while the pleadings indicate the respondent is a limited liability company; the case title and parties are not expressly stated in the judgment.

minor

The judgment describes the applicant's appeal number inconsistently as 'Civil Appeal No 125 of 2024' and 'Mombasa Civil Appeal No E125 of 2024'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohamedali v Bamoto Distributors Limited (Civil Appeal (Application) E0125 of 2024) [2024] KECA 1731 (KLR)", Case Analysis (2024). Civil Application No. E125 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1731/eng@2024-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.