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Court of AppealDismissedCivil Application No. E021 of 2025 (as inferred from the Motion dated 13th March 2025; number not stated in the judgment)

Almer Farm Limited v Rono (Sued as the Executrix of the Estate of the Late David Rono) (Civil Application E016 of 2025) [2025] KECA 871 (KLR)

Court of Appeal of Kenya
23 May 2025
1,311 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a Kitale land case, finding Almer Farm's appeal would not fail irreparably since it was pursuing both an appeal and a review.

What this practically means

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Executive summary

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Almer Farm Limited applied to the Court of Appeal at Nakuru, under rules 5(2)(b) and 42 of the Court of Appeal Rules, 2022, for a stay of proceedings in Kitale ELC Misc. App. No. E015 of 2024 pending an intended appeal against a ruling of 5th February 2025 dismissing its Notice of Preliminary Objection. The preliminary objection had asserted that the respondent's application to adopt a National Land Commission Historical Injustice Committee award, and to have 400 acres carved out of LR No. 8940, was res judicata, a word-for-word similar application having been dismissed on 1st October 2024 in Kitale ELC JR No. 4 of 2019. The applicant contended the trial judge failed to apply res judicata principles, ignored a public document under section 79(1) of the Evidence Act, and breached the right to a fair hearing by determining the preliminary objection and the main application simultaneously contrary to its own directions. The respondent, though served, did not respond. Applying the twin conjunctive rule 5(2)(b) tests, the Court found the appeal arguable since a draft memorandum of appeal was annexed and only one arguable ground is required. However, it found no nugatory aspect: there were no adverse orders in force, the trial court had already stayed execution of the orders of 5th February 2025, and the applicant was simultaneously pursuing an appeal and a review of the same orders, conduct the Court characterised as a fishing expedition. The application was dismissed on 23rd May 2025 with no orders as to costs. The decision does not disturb the ruling below; the intended appeal remains pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if stay of proceedings is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal is arguable; the applicant annexed a draft memorandum of appeal and needs to show only one arguable ground

Reasoning

The Court reiterated that arguability does not require the appeal to succeed, nor even that many grounds be arguable; a single arguable ground suffices. Since the applicant annexed its draft memorandum of appeal raising, among others, grounds on res judicata, section 79(1) of the Evidence Act and the right to a fair hearing, the first limb of the rule 5(2)(b) test was satisfied and the Court moved to the nugatory limb.

p. 3
02

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

Holding

The appeal would not be rendered nugatory; the application for stay of proceedings was dismissed

Reasoning

The applicant conceded there were no adverse orders in force, had obtained stay of execution from the trial court, and had a review application pending. The Court held that what is sought to be stayed must be reversible or not reasonably compensable in damages for the nugatory test to be met. It found the pursuit of both appeal and review against the same orders amounted to a fishing expedition, so the nugatory limb failed.

p. 3

Legal principles established

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  • An applicant for stay under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin conjunctive principles that the appeal is arguable and would be rendered nugatory if stay is not granted
  • An arguable appeal does not mean one which must succeed, and the applicant need only demonstrate that a single ground is arguable
  • A party who simultaneously pursues an appeal and a review against the same orders may be found to be on a fishing expedition, defeating a claim that the appeal would be rendered nugatory

Court orders

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  1. 1.The Notice of Motion dated 13th March 2025 seeking stay of proceedings in Kitale ELC Misc. App. No. E015 of 2024 is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court, Kitale
Kitale ELC Misc. App. No. E015 of 2024; Betty Rono v Almer Farm Limited
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2022

Relief refused

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Stay of proceedings in Kitale ELC Misc. App. No. E015 of 2024 pending the intended appeal

The appeal was found arguable, but not nugatory: there were no adverse orders in force, the trial court had already stayed execution of the orders of 5th February 2025, and the applicant was simultaneously pursuing an appeal and a review of the same orders, which the court viewed as a fishing expedition

p. 3

Costs

Dismissed with no orders as to costs

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.

To succeed, an applicant must satisfy the following twin conjunctive principles in an application under rule 5 (2) (b) of this Court's rules: the appeal is arguable and would be rendered nugatory if stay is not granted.
p. 2Twin principles for stay under rule 5(2)(b)
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 3Nugatory test
It has pursued both an appeal and an application for review against the same orders and we are not persuaded that the intended appeal will be rendered nugatory in the circumstances.
p. 3Parallel appeal and review defeats nugatory limb
It is hereby dismissed but with no orders as to costs.
p. 3Final orders - dismissal without costs

Issues in the judgment

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minor

The case number of this application before the Court of Appeal is not stated anywhere in the judgment; it is identified only by the Notice of Motion dated 13th March 2025

minor

The supporting affidavit states there are no adverse orders, while the applicant simultaneously claims the appeal will be rendered nugatory without stay; the court noted but did not reconcile this tension explicitly

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, "Almer Farm Limited v Rono (Sued as the Executrix of the Estate of the Late David Rono) (Civil Application E016 of 2025) [2025] KECA 871 (KLR)", Case Analysis (2025). Civil Application No. E021 of 2025 (as inferred from the Motion dated 13th March 2025; number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/871/eng@2025-05-23

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