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Court of AppealDismissedCivil Application No. E120 of 2024 (Nairobi)

APA Homes (K) Limited v Omar & another (Civil Appeal (Application) E040 of 2024) [2025] KECA 1035 (KLR)

Court of Appeal of Kenya
5 June 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
3,029 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a Kshs.16 million judgment against APA Homes but allowed it to keep the money safe in escrow while the appeal continues.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA) on a Notice of Motion dated 7th March 2024 by APA Homes (K) Limited seeking stay of execution of an Environment and Land Court judgment (Matheka, J., 27th February 2024) ordering it to refund Kshs.16,000,000 plus costs and interest to the respondents over a failed sale of a Nyali apartment. The respondents opposed, arguing want of a Notice of Appeal on record and hence lack of jurisdiction. The Court framed two issues: jurisdiction and the merits of the stay application. On jurisdiction, it held that the lodging of a notice of appeal is what confers jurisdiction under rule 5(2)(b), and a review of the Record of Appeal showed a Notice of Appeal dated 7th March 2024 was filed within 14 days of the judgment. On the merits, the appeal was found arguable on the questions of the alleged director's lack of authority and non-receipt of the purchase price. However, the applicant failed the conjunctive nugatory limb: the decree is a money decree, no proper case was made that the respondents could not refund, and the applicant was pleading on behalf of third parties since the apartment was already with a third party and charged to a bank. The application was dismissed, but in the interest of justice the Court ordered the applicant to deposit the decretal sum in a joint escrow account in the names of both parties' advocates within 30 days, failing which execution may proceed. Costs of the application abide the outcome of the appeal. The underlying 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 this Court has jurisdiction to determine the application in the absence of a Notice of Appeal on record
  2. 2.Whether the stay of execution orders sought under rule 5(2)(b) should issue

Key legal issues

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01

Jurisdiction to entertain a rule 5(2)(b) application absent a notice of appeal on record

Holding

The Court had jurisdiction because a Notice of Appeal dated 7th March 2024 was in fact filed within 14 days of the judgment, as disclosed by the Record of Appeal, even though counsel failed to transmit it as directed.

Reasoning

Relying on Safaricom Ltd v Ocean View Beach Hotel and Abok James Odera, the Court held that the lodging of a notice of appeal is what confers jurisdiction on the Court in an application under rule 5(2)(b). A review of the Record of Appeal disclosed that the notice was filed within time, so the objection to jurisdiction failed.

p. 4
02

Arguability of the intended appeal

Holding

The appeal was arguable: the grounds on the alleged director's lack of authority to execute the sale agreement and that the applicant never received the purchase price were worthy of consideration.

Reasoning

Applying Cleophas Wasike v Mucha Swala, the Court reiterated that an applicant need not show overwhelming probability of success, only merit. The proposed grounds concerning the unauthorised director and non-receipt of the Kshs.16,000,000 met that threshold.

p. 5
03

Whether the appeal would be rendered nugatory absent stay

Holding

The applicant failed on the nugatory limb: the decree is a money decree, the applicant did not properly argue the respondents could not refund, and the applicant was pleading a relief on behalf of third parties.

Reasoning

Applying Kenya Hotel Properties v Willesden Properties, the Court noted that a money decree does not automatically defeat stay, but the applicant must show the respondent is a person of straw or undue hardship. The applicant made no such case; the suit apartment was already in a third party's hands and charged to a bank, and the applicant was already a beneficiary of the money allegedly advanced to it.

p. 6

Legal principles established

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  • The filing of a notice of appeal is what confers jurisdiction on the Court of Appeal to entertain an application under rule 5(2)(b).
  • An arguable appeal need not be one that must succeed; it suffices that it is not frivolous and worthy of consideration.
  • The twin principles under rule 5(2)(b) - arguability and nugatory-ness - must be satisfied conjunctively.
  • When jurisdiction of a court is challenged, the court must determine that issue first.

Court orders

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  1. 1.Notice of Motion dated 7th March 2024 dismissed
  2. 2.Applicant to deposit the decretal sum of Kshs.16,000,000 in an escrow account to be opened in the names of the advocates for the two parties in a reputable bank to be agreed upon by the parties within 30 days of the ruling, failing which the respondents will be at liberty to execute
  3. 3.Costs of 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.

AM
majority

Wrote the judgment

KL
majority
GN
majority
On appeal from
Environment and Land Court
Mombasa ELC No. 111 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the ELC judgment pending appeal

Applicant failed to satisfy the conjunctive twin principles under rule 5(2)(b), particularly the nugatory limb, as the decree is a money decree and the applicant did not demonstrate the respondents would be unable to refund

p. 6

Costs

The costs of this application will 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.

Accordingly, the Notice of Motion dated 7th March 2024 is hereby dismissed.
p. 6Dismissal of the stay application
we hereby order that the applicant deposits the decretal sum of Kshs.16,000,000 in an escrow account to be opened in the names of the advocates for the two parties in a reputable bank to be agreed upon by the parties within 30 days of this ruling, failure to which the respondents will be at liberty to execute.
p. 6Final orders - conditional escrow deposit in lieu of stay
If there is no notice of appeal lodged, one cannot get an order under Rule 5 (2) (b)
p. 4Notice of appeal as the source of jurisdiction under rule 5(2)(b)
The twin principles must be satisfied conjunctively.
p. 5Conjunctive satisfaction of the rule 5(2)(b) principles
The costs of this application will abide the outcome of the appeal.
p. 6Costs order

Issues in the judgment

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minor

The applicant's name appears inconsistently within the judgment - the Housing Finance case is cited once as 'Housing Finance Company of Kenya vs.5 Sharok Kher Mohamed Ali Hirji' and later without the stray figure; also the Kenya Hotel Properties citation omits parentheses ('401 KLR')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "APA Homes (K) Limited v Omar & another (Civil Appeal (Application) E040 of 2024) [2025] KECA 1035 (KLR)", Case Analysis (2025). Civil Application No. E120 of 2024 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1035/eng@2025-06-05

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