Western Airways Limited & another v Nordic Aviation Capital (Civil Application E319 of 2024) [2025] KECA 765 (KLR)
The bottom line
#Kenya's Court of Appeal paused a US$1 million judgment, but only on condition the appellants file their long-delayed appeal within 45 days.
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 intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory unless stay of execution is granted
- 3.What conditions, if any, should attach to the grant of stay given the applicants' inordinate delay in filing the appeal
Key legal issues
#Whether the intended appeal is arguable
Yes; the grounds raised, including continued liability under a personal guarantee after amendments to the lease without the guarantor and entitlement to set-off, were bona fide issues fit for argument on appeal.
The court reviewed the intended grounds of appeal concerning the 2nd applicant's personal guarantee, separate legal personality, equity over the aircraft, set-off, and the unaccounted USD 80,000 payment. It applied the settled test that a single bona fide arguable point suffices and the appeal need not ultimately succeed.
Whether the appeal would be rendered nugatory if stay is denied
Yes; the respondent's lack of operations or assets in Kenya was uncontroverted, and the potential committal of the 2nd applicant to civil jail could not be undone.
The applicants' uncontroverted evidence that the respondent has no operations or assets in Kenya meant recovery of the decretal amount after a successful appeal would be virtually impossible. Commitment of the 2nd applicant to civil jail was likewise an irreversible eventuality. Both rule 5(2)(b) considerations were therefore satisfied.
Whether stay should be granted without conditions despite the applicants' delay of almost seven years in filing the appeal
No; the court exercised its discretion under rule 5(2)(b) to grant a conditional stay requiring the record of appeal to be filed and served within 45 days, failing which the application stands dismissed.
Although both limbs of the rule 5(2)(b) test were met, the court noted the applicants had taken almost seven years since the 2018 judgment without filing their appeal, having been stirred only by execution attempts in February 2024. The rule empowers the court to impose just conditions, and it used that power to compel diligent prosecution of the appeal.
Legal principles established
#- Under rule 5(2)(b) an applicant must satisfy both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted, and even one bona fide arguable issue suffices
- Under rule 5(2)(b) the Court may grant stay on such conditions as it deems just, including conditions addressing inordinate delay in filing the appeal
Court orders
#- 1.Conditional stay of execution of the High Court judgment and decree dated 11th May 2018 granted on condition that the applicants file and serve the record of appeal within 45 days from the date of the ruling, failing which the notice of motion dated 25th June 2024 shall stand dismissed
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional stay of execution
Stay granted only on condition that the record of appeal be filed and served within 45 days due to the applicants' inordinate delay in filing the appeal
Costs
Costs of this application shall abide the outcome of the intended appeal.
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.
Accordingly, we shall grant the applicants a conditional stay of execution to the efiect that they must file and serve the record of appeal within Forty-Five (45) days from the date of this ruling, failing which the notice of motion dated 25th June 2024 shall stand dismissed. Costs of this application shall abide the outcome of the intended appeal. It is so ordered.
we find that the applicants have satisfied both considerations for grant of an order of stay of execution under rule 5(2) (b)
even one bona fide issue will sufice and that an arguable appeal does not necessarily have to succeed on appeal
Issues in the judgment
#The court notes the respondent's deponent was its own advocate on record, who ought not to depose to contentious matters; recorded here as a procedural irregularity flagged by the court itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Western Airways Limited & another v Nordic Aviation Capital (Civil Application E319 of 2024) [2025] KECA 765 (KLR)", Case Analysis (2025). Civil Application No. Nai. E324 of 2024 (motion dated 25th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/765/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.