Kobilo Farm Limited & 1 other v Elfam Limited
The bottom line
#Kenya's Court of Appeal paused execution of a land judgment because the appeal is arguable and proceeding could make the outcome irreversible.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
Yes - at least one bona fide arguable ground existed, namely whether the learned judge erred in finding the applicants in breach of the sale agreement.
The court considered whether there was at least a single bona fide arguable ground warranting ventilation. Without going into the merits, it held that the challenge to the finding of breach was a matter properly for resolution on appeal. It applied the Kang'ethe standard that an arguable appeal need not necessarily succeed but must not be frivolous, and that the court must avoid definitive findings at the interlocutory stage.
Whether the intended appeal would be rendered nugatory if stay is not granted
Yes - execution could make the appeal outcome irreversible, since the jointly held funds or the land or both may change hands.
The court noted each case depends on its own facts and that nugatory-ness turns on whether what is to be stayed is reversible, and if reversible, whether damages would reasonably compensate. Because the dispute concerns rights under a land sale agreement rather than a pure money decree, execution could transfer the land or dissipate the jointly held funds, making any appellate success irreversible. Both prerequisites were therefore satisfied, subject to security.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory if stay is not granted; one limb alone is insufficient.
- An arguable appeal is one that is not frivolous and ought to be argued fully; the court on a Rule 5(2)(b) application must not make definitive findings of fact or law.
Court orders
#- 1.Stay of execution of the decree and judgment issued in Eldoret ELC No. 24 of 2024 pending hearing and determination of the applicants' intended appeal
- 2.Applicants to deposit Kshs. 10,000,000/= in a joint interest-earning account in the names of the advocates for both parties within 45 days, failing which the stay lapses
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Environment and Land Court, Eldoret
- ELC No. 24 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 and Articles 48 & 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kobilo Farm Limited & 1 other v Elfam Limited", Case Analysis (2025). Civil Application No. E210 of 2024 (Nakuru) - application dated 16th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/834/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.