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Court of AppealPartially AllowedNot stated in the judgment (Notice of Motion dated 3rd October 2024)

Bank of Africa (K) Limited v Juja Coffee Exporters Limited & 7 others (Civil Appeal (Application) E185 of 2024) [2025] KECA 864 (KLR)

Court of Appeal
21 March 2025
3,723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause an injunction against a bank, but froze the entire land case until the appeal is decided.

What this practically means

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Executive summary

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This Court of Appeal bench (Laibuta Carb, Achode and Ngenye-Macaria, JJA) determined a Notice of Motion dated 3rd October 2024 by an applicant bank seeking, under rule 5(2)(b) of the Court of Appeal Rules, 2022, stay of execution of a ruling of the Environment and Land Court at Mombasa (S. Kibunja J.) dated 24th July 2024, and stay of proceedings in ELC Case No. E049 of 2023, pending its appeal. The impugned ruling had granted the 1st to 4th respondents a temporary injunction restraining the bank from exercising its statutory power of sale over charged suit properties, allowed a motion by non-parties Njoka and Nyaga, and dismissed the bank's own motion. The Court applied the twin rule 5(2)(b) principles: arguability and nugatory-ness. It found the appeal arguable on jurisdictional, res judicata and locus standi grounds. However, relying on Consolidated Bank of Kenya v Usafi Limited and Mehta International, it refused stay of execution of the impugned conservatory orders, holding that a 'stay of an injunction' is not among the three orders permitted by rule 5(2)(b) since it would nullify the injunction before the appeal is heard. The Court instead granted the exceptional relief of stay of proceedings in the ELC, reasoning that allowing the trial to proceed in tandem with the appeal on jurisdiction and locus standi would render the appeal worthless. The Motion was allowed in part; costs in the application were ordered to abide the outcome 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 applicant merits stay of execution of the impugned ruling and orders of the ELC dated 24th July 2024
  2. 2.Whether the applicant merits stay of proceedings in ELC Case No. E049 of 2023 pending hearing and determination of its appeal

Key legal issues

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01

Whether the appeal was arguable under rule 5(2)(b)

Holding

The appeal was arguable, raising weighty jurisdictional, locus standi and res judicata grounds, satisfying the first limb

Reasoning

The Court found the grounds on whether the ELC has jurisdiction over disputes on validity of charges and guarantees, whether the suit was res judicata, and whether the 1st to 4th respondents had locus standi were contentious and not idle. An arguable appeal need only raise a bona fide arguable point that is not frivolous; a multiplicity of points is unnecessary.

p. 5
02

Whether stay of execution of the conservatory injunction orders could issue

Holding

Stay of execution was refused: a stay of an injunction is not within rule 5(2)(b) and would nullify the impugned orders at the interlocutory stage

Reasoning

Relying on Consolidated Bank of Kenya v Usafi Limited and Mehta International, the Court held that rule 5(2)(b) permits only stay of execution, injunction, or stay of further proceedings. Granting a stay of the impugned injunction would effectively reverse the ruling below before the appeal is determined, intruding on the merits of the appeal.

p. 6
03

Whether stay of proceedings in the ELC pending appeal should issue

Holding

Stay of proceedings was granted as an exceptional case, given the pending jurisdictional and locus standi challenges on appeal

Reasoning

Distinguishing stay of execution from stay of proceedings, the Court held the discretionary power must be exercised sparingly and only in exceptional cases. Because the appeal challenged the ELC's jurisdiction, the respondents' locus standi and res judicata, allowing the trial to proceed in tandem would render the appeal worthless and a mere academic misadventure if it succeeded.

p. 7

Legal principles established

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  • Rule 5(2)(b) permits only three orders - stay of execution, injunction, and stay of further proceedings - and a 'stay of an injunction' is not available, as it would nullify the injunction before the appeal is heard
  • The twin principles for rule 5(2)(b) relief are an arguable appeal and that the appeal will be rendered nugatory absent stay; one arguable point suffices
  • Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation; the test is high and stringent and the power is exercised sparingly and only in exceptional cases

Court orders

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  1. 1.The applicant's Motion for stay of execution of the ruling and orders of the ELC (S. Kibunja, J.) dated 24th July 2024 dismissed
  2. 2.Stay of proceedings in ELC Case No. E049 of 2023 pending hearing and determination of the applicant's appeal
  3. 3.Costs in 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
On appeal from
Environment and Land Court at Mombasa
ELC Case No. E049 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution and of proceedings pending appeal)

Relief refused

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Stay of execution of the impugned ruling and orders of the ELC dated 24th July 2024

A stay of an injunction is not an order permitted under rule 5(2)(b); granting it would nullify the conservatory orders before the appeal is heard

p. 6

Costs

Costs in the application do 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.

an applicant must demonstrate that they have an arguable appeal; and that the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, order or proceedings is not stayed
p. 4twin principles for rule 5(2)(b) relief
A stay of an injunction' is not included in that provision. The omission may well have been intended by the Rules Committee since to grant a stay of an injunction would have the efiect of nullifying the injunction before the appeal against its grant had been heard
p. 6scope of rule 5(2)(b) orders
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation
p. 6stay of proceedings distinguished from stay of execution
a. The applicant's Motion for stay of execution of the ruling and orders of the ELC (S. Kibunja, J.) dated 24th July 2024 be and is hereby dismissed; b. There be stay of proceedings in ELC Case No. E049 of 2023 pending hearing and determination of the applicant's appeal; and c. That costs in the application do abide the outcome of the appeal
p. 7final orders / disposition

Issues in the judgment

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minor

The judgment is an interlocutory application ruling and does not state the Court of Appeal case/notice of motion number by which the applicant was moved, limiting citation accuracy

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, "Bank of Africa (K) Limited v Juja Coffee Exporters Limited & 7 others (Civil Appeal (Application) E185 of 2024) [2025] KECA 864 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 3rd October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/864/eng@2025-03-21

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