Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. E331 of 2024 (Nairobi)· [2025] KECA 503 (KLR)

Leebarn Builders Limited v Kenya Bankers' Savings and Credit Cooperative Society Limited (Civil Application E425 of 2024) [2025] KECA 503 (KLR)

Court of Appeal of Kenya
21 March 2025
JMJamila MohammedMNMumbi NgugiFOF. Ochieng
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to freeze a property dispute, ruling that money damages would adequately compensate the builder if it later won its appeal.

What this practically means

#

Executive summary

#
This was an application under rule 5(2)(b) of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act by Leebarn Builders Limited seeking a temporary injunction restraining the respondent from selling, developing, subdividing, transferring or alienating L.R. No. 209/13294/1 pending an intended appeal against a judgment of the Environment and Land Court dated 12th March 2024. The ELC had dismissed the applicant's suit seeking enforcement of a Memorandum of Agreement dated 26th July 2007, finding its second phase 'futuristic' and unenforceable. The parties had contracted for the applicant to develop 145 units on its own property, then a further 139 units; the respondent paid Kshs. 23 million towards the applicant's purchase of the first property, lost faith in the applicant, and declined the second phase. The Court applied the twin principles from Stanley Kang'ethe Kinyanjui v Tony Keter: an arguable appeal and nugatory value. It found the first limb satisfied, since the applicant's ground that the ELC erred on the enforceability of the MOA was bona fide arguable. However, the applicant failed the second limb: it did not claim ownership of or any interest in the suit property, its claim was for enforcement or damages, and any loss on success could be compensated in damages it had itself sought before the ELC. The Court of Appeal dismissed the application with costs to the respondent. This single-judgment decision of a three-judge bench binds subordinate courts and the High Court on the rule 5(2)(b) nugatory principle where damages suffice.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The applicant satisfied the first limb: a single bona fide arguable ground suffices, and the contention that the ELC erred in holding the MOA unenforceable was arguable

Reasoning

The court noted the applicant contended the trial court misdirected itself in finding the MOA not a binding agreement despite the alleged presence of the requirements of a binding contract. Applying the principle that one bona fide arguable ground is sufficient, the court found the first principle satisfied without difficulty.

p. 4
02

Nugatory value of the appeal

Holding

The appeal could not be rendered nugatory because the applicant, whose claim was for enforcement of the MOA or damages, would be compensable in damages if it succeeded

Reasoning

The applicant did not claim ownership of or any interest in the suit property, which is registered in the respondent's name. Its claim was contractual enforcement with damages as an alternative. Damages therefore adequately compensated it, so the second limb of the rule 5(2)(b) test failed and the application was dismissed.

p. 4

Legal principles established

#
  • An applicant under rule 5(2)(b) must satisfy the court on both twin principles: an arguable appeal and that the appeal will be rendered nugatory if the orders are not granted
  • Where the relief an appellant seeks can be adequately compensated by an award of damages, its appeal cannot be rendered nugatory and the second limb fails

Court orders

#
  1. 1.The application dated 14th August 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rules, 2022rule 5(2)(b)
  • Court of Appeal Rules, 2022rule 45(2)

Cases cited (5)

  • Stanley Kang'ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
On appeal from
Environment and Land Court
null
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Leebarn Builders Limited v Kenya Bankers' Savings and Credit Cooperative Society Limited (Civil Application E425 of 2024) [2025] KECA 503 (KLR)", Case Analysis (2025). Civil Application No. E331 of 2024 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/503/eng@2025-03-21

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