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Court of AppealDismissedCivil Appeal No. E829 of 2023 (Notice of Motion dated 24th January 2025)

Majevdia & 2 others v NGM Financial Consultants Limited & another (Civil Appeal (Application) E829 of 2023) [2025] KECA 1147 (KLR)

Court of Appeal
20 June 2025
4,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a High Court case pending appeal, ruling the appeal wouldn't be wasted even if the trial proceeds and costs can compensate.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi dated 20th June 2025 on a Notice of Motion dated 24th January 2025 by which the applicants, defendants in Nairobi HCCC No. E003 of 2022, sought a stay of proceedings in the High Court pending the hearing and determination of Civil Appeal No. E829 of 2023. The appeal challenges the High Court ruling of 28th July 2023 dismissing the applicants' application under Order 2 Rule 15(1)(b), (c) and (d) of the Civil Procedure Rules to strike out the suit as res judicata and time-barred. The respondents opposed, arguing the application was a backdoor attempt to appeal the trial court's ruling of 22nd November 2024 dismissing a similar stay application. The Court held that on Rule 5(2)(b) applications it exercises original jurisdiction and may consider the matter de novo notwithstanding a prior application below. On the merits, the Court found the intended appeal arguable, a single bona fide arguable ground sufficing. However, on the nugatory limb, the Court held that a higher threshold applies to stay of proceedings than to stay of execution because such orders derail pending litigation and may curtail the Article 159(2)(d) right to expeditious disposal. Applying the Benjoh Amalgamated line of authority, the Court found that if the suit proceeds and fails, nothing would bar the applicants from raising the same issues on appeal, and any unnecessary hearing could be remedied by costs. The Motion was accordingly dismissed with costs. The decision below was not disturbed.

Questions the Court framed

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

  1. 1.Whether the Court may entertain an application for stay of proceedings de novo where a similar application has been made and dismissed before the trial court
  2. 2.Whether the intended appeal is arguable
  3. 3.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 Court can entertain the stay application where a similar application had been dismissed by the trial court

Holding

Yes. The Court has jurisdiction to consider such an application de novo; the application is not a backdoor appeal against the trial court ruling.

Reasoning

Rule 43 confers jurisdiction where no such application was made in the first instance, but the Court has consistently held in a long line of decisions that on Rule 5(2)(b) applications it exercises original jurisdiction and applies its mind de novo to the propriety of granting the relief. The exercise is not an appeal from the trial judge's discretion.

p. 3
02

Whether the intended appeal is arguable

Holding

Yes. Without expressing conclusive views, the Court found the intended appeal not frivolous and deserving of full argument.

Reasoning

An arguable appeal is one which ought to be argued fully, not one that must succeed. The applicants raised grounds concerning whether the Judge erred in treating the strike-out application as one on non-disclosure of a reasonable cause of action and in finding that statutory time bar and res judicata were matters of fact not determinable by affidavit evidence. A solitary bona fide arguable point suffices.

p. 5
03

Whether the intended appeal would be rendered nugatory absent stay of proceedings

Holding

No. The applicants failed the second limb and the application was dismissed.

Reasoning

A stay of proceedings is a serious, grave and fundamental judicial action interfering with the right to conduct litigation and with the right of access to justice and expeditious disposal under Article 159(2)(d); a higher nugatory threshold applies than for stay of execution. If the suit proceeds and is dismissed, the applicants' fears are unrealised; if it fails, nothing bars them from appealing. Costs can remedy any unnecessary hearing, as in Benjoh Amalgamated followed in Silverstein.

p. 8
04

Whether the application could proceed in the absence of the respondents at the virtual hearing

Holding

Yes. Where parties have filed written submissions, the Court considers the application on the material on record; non-appearance does not automatically result in allowance or dismissal.

Reasoning

Rule 58(1) and (2) of the Court of Appeal Rules permit applications to be heard by way of written submissions. Where directions for written submissions are given, the non-appearance of a complying party does not automatically determine the application; the Court is enjoined to determine it on the material placed on the record.

p. 3

Legal principles established

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  • The twin conditions for stay pending appeal under Rule 5(2)(b) are arguability and nugatory-ness, and they must be satisfied conjunctively; failure on either defeats the application.
  • This Court exercises original jurisdiction on Rule 5(2)(b) applications and may consider such applications de novo even where a similar application was made and determined in the court below.
  • A single bona fide arguable ground suffices for the arguability condition; the appeal need not necessarily succeed.
  • A higher threshold of the nugatory principle applies to stay of proceedings than to stay of execution, because a stay of proceedings derails pending litigation and may curtail the right to expeditious disposal under Article 159(2)(d).

Court orders

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  1. 1.The Notice of Motion dated 24th January 2025 seeking stay of proceedings pending the hearing and determination of Civil Appeal No. E829 of 2023 is dismissed with costs

The bench

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

majority
majority
majority
On appeal from
High Court
Nairobi HCCC No. E003 of 2022 - Nitin Gordhandas Mandavia & Anor v Hitan Chaglal Majevdia & 2 Others
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules as read with Rule 43 and sections 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Stay of proceedings in Nairobi HCCC No. E003 of 2022 pending the hearing and determination of Civil Appeal No. E829 of 2023

The applicants failed to satisfy the second (nugatory) limb of the twin Rule 5(2)(b) principles; a stay of proceedings is a grave judicial action interfering with the right to conduct litigation, and the applicants would not be prejudiced since they could raise the same issues at trial or on appeal

p. 8

Costs

The application is dismissed with costs to the respondents.

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.

The two conditions are considered conjunctively so that failure to satisfy either leads to dismissal of the application.
p. 4Twin principles for Rule 5(2)(b) applications
It is not necessary that the applicant demonstrates a multiplicity of arguable issues since a single bonafide arguable ground of appeal if raised is suficient for the purposes of the first condition.
p. 4Arguability threshold
when it comes to the nugatory aspect, in the latter case a higher threshold is required to be met than in the former case. This must be so because an order staying proceedings has the efiect of derailing the pending proceedings before a final determination is made therein.
p. 5Higher nugatory threshold for stay of proceedings
We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation.
p. 5Nature of stay of proceedings
As the applicant has failed to surmount the second hurdle, this Motion fails and is hereby dismissed with costs.
p. 8Final orders - disposition

Issues in the judgment

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minor

The judgment text appears corrupted at the junction of passages 19 and 20, interleaving the Fleur Investments quotation with the court's own narration

minor

The bench listing prints the third judge's name with an apparent typographical error

minor

The recital of the National Industrial Credit Bank Ltd v Wasike citation in paragraph 16 is incomplete, cutting off before the quoted passage

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, "Majevdia & 2 others v NGM Financial Consultants Limited & another (Civil Appeal (Application) E829 of 2023) [2025] KECA 1147 (KLR)", Case Analysis (2025). Civil Appeal No. E829 of 2023 (Notice of Motion dated 24th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1147/eng@2025-06-20

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