Bamboo Twist Limited v National Land Commission & 7 others; Embassy of Rwanda & another (Interested Parties) (Civil Application E059 of 2024) [2025] KECA 120 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop Mombasa County from dealing with disputed land because money can compensate Bamboo Twist if its appeal later succeeds.
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's intended appeal is arguable
- 2.Whether, unless interim relief is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The Court found the grounds of appeal were not frivolous and deserved scrutiny, satisfying the first limb of the twin principle.
The Court reviewed the nine grounds of appeal challenging the ELC's dismissal of conservatory orders. Despite respondents' contention that the appeal was not arguable, the Court held the grounds could not fairly be wished away as undeserving of scrutiny, while emphasizing that whether the appeal would ultimately succeed was not for it to judge at this interlocutory stage.
Whether the intended appeal would be rendered nugatory absent relief
The Court found the nugatory limb unsatisfied because the value of the suit properties was ascertainable and the applicant could be adequately compensated by damages, including any statutory compensation on compulsory acquisition.
Relying on Reliance Bank v Norlake and Stanley Kangethe Kinyanjui, the Court held that compensation by damages was a sufficient remedy. The Court noted the properties had changed hands, an industrial park was being developed, and the applicant retained a statutory right to compensation on compulsory acquisition by the State, so the appeal would not be rendered worthless if it succeeded.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin conjunctive principles of an arguable appeal and that the appeal would be rendered nugatory absent relief.
- An arguable appeal need not necessarily succeed; it suffices if it is not frivolous and raises even one triable issue.
- Nugatory-ness is assessed by whether the impugned act is reversible or, if not, whether damages would reasonably compensate, in light of the circumstances of each case and the conflicting claims of both sides.
Court orders
#- 1.The applicant's Motion dated 3rd June 2024 is dismissed
- 2.Each party shoulders their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Petition No. 3 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Temporary injunction restraining the County Government of Mombasa from asserting rights over or interfering with the applicant's proprietary rights over Plots MN/VI/1128-1132 pending the intended appeal
The applicant satisfied the arguability limb but failed to demonstrate that the appeal would be rendered nugatory, as any loss is compensable by damages
Costs
The application was dismissed with orders that each party shoulders their own costs of the application.
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.
Firstly, an applicant has to satisfy the Court that he or she has an arguable appeal. Secondly, an applicant has to demonstrate that, unless an order of stay or interim injunctive relief is granted, the appeal or intended appeal (if successful) would be rendered nugatory.
Consequently, the applicant's Motion fails and is hereby dismissed with orders that each party shoulders their own costs of the application. Orders accordingly.
The word does not only mean worthless, futile or invalid. It also means trifiing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bamboo Twist Limited v National Land Commission & 7 others; Embassy of Rwanda & another (Interested Parties) (Civil Application E059 of 2024) [2025] KECA 120 (KLR)", Case Analysis (2025). Notice of Motion dated 3rd June 2024 (intended appeal from ELC Petition No. 3 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/120/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.