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Court of AppealDismissedCivil Application No. E092 of 2024 (as per application dated 9th October 2024)

Tatu City Limited v Home Bridge Limited (Civil Application E511 of 2024) [2025] KECA 64 (KLR)

Court of Appeal
24 January 2025
4,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stop Home Bridge's construction at Tatu City because Tatu City failed to show its appeal would be ruined without a stay.

What this practically means

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Executive summary

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Tatu City Limited applied to the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules for a stay of proceedings in ELC Case No. E046 of 2023 (Thika) and an order restraining Home Bridge Limited from constructing on Unit Number L4-02 within LR No. 28867/1, pending an intended appeal against a ruling of G. Kemei J delivered on 30th September 2024, in which the ELC dismissed Tatu City's injunction application and lifted ex parte orders that had halted Home Bridge's construction. Tatu City, designated a Special Planning Area, contended that Home Bridge commenced construction without approvals from its Development Control Company as required by the lease and Master Declaration, and that the appeal would be rendered nugatory if construction were allowed to continue. Home Bridge countered that it held valid development approval from the Cabinet Secretary, Ministry of Lands, granted on 20th March 2023 after a consultative process in which Tatu City participated, that Tatu City had materially misrepresented the ruling, and that stopping construction would jeopardise loans exceeding Kshs 2.4 billion, contracts with third-party purchasers, and a completed identical phase 1 of 562 occupied apartments. The court applied the settled two-limb Rule 5(2)(b) test. It found the intended appeal arguable on the contestation over development approvals, but held that the nugatory limb failed: the development was reversible, Tatu City provided no evidence of irreversible damage, third parties would be prejudiced by a stay, and Home Bridge's financial losses would not be compensated by damages. The application was dismissed with costs to Home Bridge.

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 against the ELC ruling of 30th September 2024 is arguable
  2. 2.Whether the intended appeal will be rendered nugatory if the stay of proceedings and stay of execution sought are not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable, arising from the contestation on the propriety of the ELC's findings on the approvals required for Home Bridge's development.

Reasoning

Applying National Industrial Credit Bank Ltd v Aquinas Francis Wasike, the court held that grounds need not be argued at this stage; the applicant need only point out grounds believed to be arguable. The draft memorandum raised thirteen grounds contesting the ELC's treatment of the Ministry's approval and Tatu City's development control requirements, which the court found bona fide without expressing any view on their merits.

p. 7
02

Whether the intended appeal would be rendered nugatory

Holding

The appeal would not be rendered nugatory because the development was reversible, Tatu City adduced no evidence of irreversible damage, third parties would be affected by a stay, and Home Bridge's financial losses would not be compensated by damages.

Reasoning

Relying on Stanley Kangethe Kinyanjui v Tony Keter, the court weighed whether what is sought to be stayed is reversible or compensable in damages. Home Bridge had previously obtained approval for identical phase 1 construction, phase 2 mirrored phase 1, 562 completed apartments were sold and occupied, and loans totalling billions of shillings would be jeopardised. Tatu City offered no compensation and no proof of irreversible harm.

p. 8

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if the stay is not granted; both limbs must be satisfied.
  • An arguable appeal is not one that must succeed, but one raising a bona fide issue worthy of consideration; a single arguable point suffices.
  • An appeal is rendered nugatory where the effect of what is sought to be stayed is irreversible, or if irreversible, where damages will not reasonably compensate the aggrieved party.

Court orders

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  1. 1.Dismissal of Tatu City Limited's application dated 9th October 2024
  2. 2.Costs of the application to Home Bridge Limited

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court, Thika
ELC Case No. E046 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of proceedings in ELC Case No. E046 of 2023 pending the hearing and determination of the intended appeal

The applicant did not demonstrate that the intended appeal would be rendered nugatory if the stay was not granted

p. 8

Order restraining Home Bridge Limited from constructing on and developing Unit Number L4-02 pending the intended appeal

The second limb of the Rule 5(2)(b) test was not satisfied; the development is reversible, third parties would be affected, and the financial losses to Home Bridge were not compensable by Tatu City

p. 8

Costs

The application dated 9th October 2024 is dismissed with costs to Home Bridge.

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.

These principles, which are well established by various decisions of the Court, are that an applicant has to demonstrate that the appeal is arguable, and, that if the stay sought is not granted, the appeal or the intended appeal, as the case may be, will be rendered nugatory
p. 4Principles for grant of stay under Rule 5(2)(b)
Both limbs must be demonstrated before a party can obtain a relief under rule 5(2) (b)
p. 4Cumulative nature of the Rule 5(2)(b) test
In the circumstances, given that Tatu City has not demonstrated that its appeal will be rendered nugatory if the stay it seeks is not granted, we find that it has not met the threshold for grant of a stay of proceedings in ELC Case No. E046 of 2023, or of execution of the ruling of the ELC delivered therein on 30th September 2024. Its application dated 9th October 2024 is accordingly hereby dismissed with costs to Home Bridge.
p. 8Disposition - dismissal of the application with costs
We need not say more least we embarrass the bench that will eventually be tasked with hearing the intended appeal.
p. 7Restraint in expressing views on arguable grounds

Issues in the judgment

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minor

The judgment does not state the appeal number under which the application was lodged, only the application date; the caseNumber field is inferred from the application description

minor

Ground 13 of the draft memorandum of appeal appears without text, and the judgment's numbering of grounds 13 and 18 is inconsistent

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, "Tatu City Limited v Home Bridge Limited (Civil Application E511 of 2024) [2025] KECA 64 (KLR)", Case Analysis (2025). Civil Application No. E092 of 2024 (as per application dated 9th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/64/eng@2025-01-24

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