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Court of AppealPartially AllowedCivil Application (Rule 5(2)(b)) - number not stated in judgment

Souza alias Frankline D’souza v Eugefreight Travel & Tours Limited & another (Civil Application E216 of 2024) [2025] KECA 149 (KLR)

Court of Appeal
7 February 2025
1,238 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 halted a land case trial because continuing it without cross-examination would have made the appeal pointless.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi, delivered on 7th February 2025, on a motion under Rule 5(2)(b) of the Court of Appeal Rules by Franklin Shubhas Souza seeking a stay of proceedings in ELC Case E082 of 2012 (instituted as ELC E082 of 2021) pending his appeal from a ruling of 30th November 2023. The applicant failed to attend the hearing of the suit, at which the 1st respondent's witnesses testified; his application to re-open the defence and recall those witnesses for cross-examination was only partially allowed by the trial Judge, who re-opened the defendants' case but declined the recall. Leave to appeal was granted and a Notice of Appeal filed. Applying the settled Rule 5(2)(b) test from Stanley Kangethe Kinyanjui v Tony Keter, the Court found the intended appeal arguable, raising the applicant's right to fair trial and the discretion exercised in refusing cross-examination. On the nugatory prong, applying its own decision in Meta Platforms and the Nigerian authority NNPC v Odidere, the Court held that allowing the defence hearing to proceed would destroy the opportunity to canvass the appeal, rendering any success a pyrrhic victory. The 1st respondent's preliminary objection, contending that no valid appeal existed for want of a substantive appeal filed within 60 days, was rejected as a Notice of Appeal was on record and no striking-out application was before the Court. The application was allowed, proceedings before the ELC stayed pending the appeal, the appeal to be heard on priority after case management, with costs of the application abiding the outcome of the appeal. The decision below was not disturbed; the Court's order binds the ELC for the duration of the appeal.

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
  2. 2.Whether, absent a stay of proceedings, the appeal would be rendered nugatory
  3. 3.Whether the preliminary objection that no valid appeal was filed within 60 days has merit

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable, raising whether the Judge erred in denying the applicant the right to cross-examine the 1st respondent's witnesses and whether his right to fair trial was violated.

Reasoning

The memorandum of appeal complains that the trial Judge erred in refusing to allow recall of the 1st respondent's witnesses for cross-examination and that the refusal was a wrong exercise of judicial discretion jeopardising the applicant's right to a fair trial. On those grounds the Court was satisfied the appeal is not frivolous.

p. 2
02

Nugatory value of the appeal

Holding

If the application were refused and the defence hearing proceeded, the opportunity to canvass the appeal would be lost altogether and any success would be a pyrrhic victory.

Reasoning

Applying the Meta Platforms principles, the Court held that an interlocutory order should be stayed only where proceeding would significantly prejudice the applicant. Here, allowing the defence hearing to continue before the right to cross-examine is determined would extinguish the very right the appeal seeks to protect, rendering the appeal nugatory.

p. 3
03

Preliminary objection on validity of the appeal

Holding

The preliminary objection that there is no valid appeal for want of a substantive appeal filed within 60 days lacks merit because a Notice of Appeal is on record and no application to strike it out is before the Court.

Reasoning

The Court noted that a Notice of Appeal dated 6th December 2023 is on record following leave granted. It declined to determine validity of the appeal in the absence of a striking-out application, holding the objection to be without merit.

p. 3

Legal principles established

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  • To succeed on an application for stay of proceedings under Rule 5(2)(b), the applicant must demonstrate that the appeal or intended appeal is arguable and that the appeal will be rendered nugatory if the orders sought are refused
  • Stay of proceedings is a grave interruption of a party's right to conduct litigation and should not be granted unless the proceedings ought not, beyond all reasonable doubt, be allowed to continue

Court orders

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  1. 1.An order of stay of proceedings before the ELC in ELC Case No. E082 of 2021 pending the hearing and determination of the applicant's appeal from the ruling delivered on 30th November 2023
  2. 2.The substantive appeal to be fixed for hearing on a priority basis after case management before the Deputy Registrar of the Court
  3. 3.Costs of the application to abide the outcome of the appeal

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, Nairobi
ELC E082 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Recall of the 1st respondent's witnesses for cross-examination (sought before the trial court, not before this Court)

The ELC declined the request; that refusal is the subject of the intended appeal and was not disturbed at this stage

p. 2

Costs

Costs of the application shall abide the outcome of the appeal.

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.

To succeed in an application of this nature, the applicant is required to demonstrate that the appeal, or intended appeal is arguable and that should the orders sought be refused, and the appeal eventually succeeds, it will all be in vain.
p. 2Rule 5(2)(b) test - arguability and nugatory aspect
Stay of Proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case
p. 3General reluctance of courts to grant stay of proceedings
In the result, we allow the application dated 6th May 2024 and hereby grant an order of stay of proceedings before the ELC in ELC Case No. E082 of 2012 pending the hearing and determination of his appeal from a ruling delivered on 30th November 2023.
p. 3Final orders - stay granted
Costs of the application shall abide the outcome of the appeal.
p. 3Costs order

Issues in the judgment

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minor

Internal inconsistency in dates: the suit is referred to as ELC E082 of 2021, but the stay order and application refer to ELC Case No. E082 of 2012; the trial hearing is also variously given as 6th November 2023 and '6th November 2013'

minor

The judgment describes John Kipkosgei Korir as the 2nd respondent in the appeal but as the 1st defendant before the trial court

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, "Souza alias Frankline D’souza v Eugefreight Travel & Tours Limited & another (Civil Application E216 of 2024) [2025] KECA 149 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/149/eng@2025-02-07

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