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Court of AppealDismissedApplication dated 13th November 2024 in appeal from Vihiga HCCC No. E010 of 2021· [2025] KECA 662 (KLR)

The Board of Management Kaimosi Teachers Training College v Pambazuka Builders Construction Company Limited & 1 other

Court of Appeal of Kenya
11 April 2025
HOH. A. OmondiLKL. KimaruAMA. O. Muchelule
1,451 words in judgment
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The bottom line

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The Court of Appeal dismissed a college's bid to halt payment of a Kshs. 7 million construction judgment because it could not show the appeal would be worthless without a stay.

What this practically means

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Executive summary

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This was a single-judge-panel matter heard by the Court of Appeal at Kisumu under Rule 5(2)(b) of the Court of Appeal Rules, 2010. The applicant, a training college whose chairman is Reverend Ephraim Konzolo, sought a stay of execution of the judgment and orders in Vihiga HCCC No. E010 of 2021 pending the hearing and determination of an appeal. The underlying dispute arose from a 2017 tender awarded to the respondents to construct a multi-purpose hall and kitchen for the applicant's training college; after payment disputes and cancellation of the contract, the respondents obtained judgment for Kshs. 7,000,000 out of a claim exceeding Kshs. 31 million. The application was opposed by the 2nd respondent, Desmond Mmalenje Shivachi, who argued the applicant had not shown an arguable appeal or nugatory-ness, and was in any event already using the building. The court applied the settled twin principles: the appeal must be arguable, and it must be rendered nugatory absent a stay. It found the appeal arguable, notably on whether the High Court failed to consider the applicant's counterclaim dated 30th May 2023. However, on the second limb, the court balanced the hardships: the applicant is enjoying the completed hall without paying for it, while the respondents risk losing their investment if unable to recover the decretal sum. The applicant therefore failed to establish that the appeal would be rendered nugatory. The application was dismissed with costs to the respondents. No decision on the merits of the appeal was made.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was held arguable, including on whether the court below failed to consider the applicant's counter claim dated 30th May 2023.

Reasoning

The court need only find a single bona fide arguable ground. The failure to consider the counterclaim was sufficient, without making definitive findings that would embarrass the bench hearing the main appeal. Arguability is a low threshold: an arguable appeal is not one that must succeed, only one deserving of full argument.

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02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The applicant failed to prove the nugatory limb; the application was dismissed.

Reasoning

The court weighed the hardships of both sides. The applicant is already using the completed multi-purpose hall without paying the respondents, while the respondents risk losing the money spent on the tender if unable to recover the decretal sum. With roughly equal hardship and the applicant enjoying the fruits of the contract it has not paid for, the appeal could not be said to be rendered nugatory by execution.

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Legal principles established

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  • To succeed under Rule 5(2)(b), an applicant must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; both limbs must be demonstrated.
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and deserves full argument, and the court must not make definitive findings of fact or law at the interlocutory stage.
  • In assessing nugatory-ness, the court must weigh the conflicting claims and hardships of both parties and balance them fairly.

Court orders

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  1. 1.The Notice of Motion dated 13th November 2024 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
High Court of Kenya
Vihiga HCCC No. E010 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "The Board of Management Kaimosi Teachers Training College v Pambazuka Builders Construction Company Limited & 1 other", Case Analysis (2025). Application dated 13th November 2024 in appeal from Vihiga HCCC No. E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/662/eng@2025-04-11

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