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Court of AppealDismissedCivil Application (rule 5(2)(b)) – ruling delivered 24th January 2025, Nairobi

Ahmed v Varsani & 4 others (Civil Application 357 of 2024) [2025] KECA 102 (KLR)

Court of Appeal
24 January 2025
1,940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused a stay of execution because the order had already been carried out, confirming stays cannot reverse completed actions.

What this practically means

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Executive summary

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This is a single-application ruling of a three-judge bench of the Court of Appeal at Nairobi, delivered on 24th January 2025 (Nyamweya, Korir and Odunga, JJA), in which an applicant moved under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a ruling by C. Ochieng, J in ELC Case No. E013 of 2023 dated 19th June 2024. That ruling had allowed applications by the 2nd and 5th respondents to set aside orders of 20th November 2023 (which had cited them for contempt), join Vipul Jadavji Govind Varsani as the 5th defendant, and restore the status quo ante by returning them to possession of the suit parcel LR 12715/14287. The court restated the settled two-limb test under rule 5(2)(b): the applicant must show an arguable appeal and that the appeal will be rendered nugatory absent stay, both limbs being cumulative. It accepted the appeal was arguable on the joinder question, a single bona fide point sufficing. However, on the nugatory limb, the court found the order had already been executed – the 5th respondent deposed that the applicant had voluntarily restored the respondents to possession on 24th June 2024 and the applicant filed no replying affidavit to rebut this – and that a stay does not reverse actions already taken in execution. The effect of the orders sought to be stayed was simply that the parties would be heard and a final determination made. The motion was dismissed with costs.

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, if stay of execution is not granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable because the question whether the 5th respondent was properly joined, being a judicial discretion, raises a bona fide issue.

Reasoning

The court applied the settled test that an arguable appeal need not be one that will succeed but must raise a bona fide issue worthy of consideration. The joinder of the 5th respondent was an exercise of discretion that must be invoked judiciously; whether it was properly exercised was not frivolous. The court declined to say more so as not to embarrass the bench that would hear the appeal.

p. 4
02

Nugatory-ness of the intended appeal absent stay

Holding

The second limb failed: the order had been executed when the applicant gave the respondents access, and the applicant did not refute that position; the effect of the orders sought to be stayed was that the parties would be heard on the merits.

Reasoning

Stay orders preserve the status quo pending appeal but do not reverse actions already taken in execution of the order. The respondents deposed that the applicant voluntarily returned them to possession; the applicant filed no further affidavit to refute this. Further, the orders of 20th November 2023 arose from a contempt application, and setting them aside meant the parties would be heard and a final determination made; the applicant did not explain how the appeal would be rendered nugatory.

p. 4

Legal principles established

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  • Rule 5(2)(b) jurisdiction is original, independent and discretionary, and arises only where a notice of appeal or the appeal itself has been lodged
  • An applicant under rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted
  • A single arguable point suffices to satisfy the first limb of the rule 5(2)(b) test
  • A stay of execution maintains the status quo pending appeal but is not a relief that reverses actions already taken in execution of the order sought to be stayed
  • An appeal is rendered nugatory where the resulting effect is likely to be irreversible, or, if reversible, where damages will not reasonably compensate the aggrieved party

Court orders

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  1. 1.Decline to grant stay of execution of the ruling/order made in ELC Case No. E013 of 2023 delivered on 19th June 2024
  2. 2.Dismiss the Motion dated 10th July 2024 with costs

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
ELC Case No. E013 of 2023 (ruling of 19th June 2024, C. Ochieng, J)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling/order of 19th June 2024 in ELC Case No. E013 of 2023

The order sought to be stayed had already been executed and the applicant failed to demonstrate that the intended appeal would be rendered nugatory absent a stay

p. 4

Costs

The Motion dated 10th July 2024 was dismissed with costs (to the respondents).

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.

In the premises, we decline to grant the orders sought and dismiss the Motion dated 10th July 2024 with costs.
p. 4Final orders – dismissal of the motion
The order having been executed, we are of the view and hold that the applicant has failed to satisfy that unless we grant the orders sought the intended appeal will be rendered nugatory.
p. 4Nugatory test not satisfied
It is, generally not a relief that reverses the decision being appealed against by reversal of the actions already taken in the execution of the orders sought to be stayed.
p. 4Nature of stay of execution
By the term arguable”, it is not meant an appeal or an intended appeal that will succeed, but one which raises a bona fide issue worth of consideration by the Court
p. 3Meaning of arguable appeal under rule 5(2)(b)
Both limbs must be demonstrated before a party can obtain a relief under rule 5(2) (b)
p. 4Cumulative requirements under rule 5(2)(b)

Issues in the judgment

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minor

Internal inconsistency in dates regarding the contempt order – paragraph 4 states the applicant deposed that on 20th November 2023 the trial court cited the respondents for contempt of 'the order issued on 13th November 2023', while elsewhere the status quo order is said to have been issued on 13th March 2023 and paragraph 3 refers to 'status quo ante the issuance of the orders of 13th March 2023'

minor

Judgment text contains typographical errors rendering some words unclear (e.g. 'efiect' for 'effect', 'sufice' for 'suffice')

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, "Ahmed v Varsani & 4 others (Civil Application 357 of 2024) [2025] KECA 102 (KLR)", Case Analysis (2025). Civil Application (rule 5(2)(b)) – ruling delivered 24th January 2025, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/102/eng@2025-01-24

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