Mwaura v Transeast Limited (Civil Application E104 of 2024) [2025] KECA 887 (KLR)
The bottom line
#The Court of Appeal refused to stop seizure of a judgment debtor's goods, ruling that merely claiming you can't refund a decree isn't proof.
What this practically means
#Executive summary
#Key legal issues
#Twin conditions for relief under rule 5(2)(b)
The applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory if the order sought is not granted; the conditions are conjunctive and failure on either limb is fatal.
The court restated the settled principles from Najib Balala v David M. Githere and Kinyanjui v Tony Ketter: the arguable-appeal limb and the nugatory limb must both be satisfied. The applicant's grounds on hearsay, special damages and burden of proof were held arguable, but the applicant failed the nugatory limb, so the application had to fail.
Burden of proving inability to refund a decretal sum
Where an applicant alleges a remote possibility that the decretal amount cannot be refunded, the sole obligation to prove the respondent's inability to pay rests on the applicant; a blanket statement is insufficient.
Relying on National Industrial Credit Bank Ltd v Aquinas Francis Wasike, the court held that mere assertion of inability to refund does not discharge the evidential burden. The applicant only made a blanket statement, and his own insurer had begun paying the decretal sum, undermining any claim of prejudice.
Injunction as a disguised stay of execution
Injunctive relief pending appeal preserves the subject matter of an appeal; using an injunction merely to restrain execution of a money decree is an indirect way of seeking stay and renders the Motion incompetent.
The court distinguished legitimate injunctive relief, which preserves the substratum of an appeal, from this application, which sought only to restrain execution of a money decree. Because preservation of the subject matter was not in issue, the injunction was a disguised stay application and incompetent.
Effect of misdescription of relief in the Motion
A discrepancy between the title of a Motion (stay of execution) and its substantive prayer (injunction) does not divest the court of jurisdiction under rule 5(2)(b), but counsel are cautioned to draft pleadings diligently.
The court noted that the principles for injunctions and stays under rule 5(2)(b) are identical, so the mislabel caused no prejudice and did not oust jurisdiction. It nonetheless warned that in other instances such carelessness could cost a party a well-deserved order.
Legal principles established
#- The principles for granting an injunction pending appeal under rule 5(2)(b) are the same as for stay of execution or stay of proceedings: the applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory if the order is not granted, both conditions operating conjunctively
- An arguable appeal is one which is not frivolous; even a single bona fide ground of appeal suffices, and it matters not whether the appellant will ultimately succeed
- An applicant who alleges that the decretal amount cannot be refunded bears the sole obligation to prove the respondent's inability to pay; mere assertion is not enough
- A prayer for an injunction to restrain execution is an indirect way of seeking stay of execution and is an anomaly rendering such a Motion incompetent
- A misdescription of the relief in the title of a Motion, where the substantive prayer is clear, does not divest the Court of jurisdiction under rule 5(2)(b), though counsel must draft pleadings diligently
Court orders
#- 1.The Notice of Motion dated 16th September 2024 is dismissed with costs
- On appeal from
- High Court of Kenya at Voi
- HCCA No. E006 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022; sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura v Transeast Limited (Civil Application E104 of 2024) [2025] KECA 887 (KLR)", Case Analysis (2025). Civil Application No. E071 of 2022 (referred in judgment as arising from HCCA No. E006 of 2023 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/887/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.