Aberdare Wire Products Limited v Tarmal Wire Products Limited (Civil Appeal (Application) E154 of 2021) [2025] KECA 1154 (KLR)
The bottom line
#The Court of Appeal refused to pause collection of a Kshs 21 million judgment, confirming that money decrees rarely justify staying execution when the winner can refund.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The appeal was found to be arguable, though not necessarily successful
The applicant's memorandum of appeal raised complaints about the striking out of its defence, including denial of triable issues and of a fair hearing. Applying the settled principles, the court noted that an arguable appeal need not necessarily succeed, and gave the applicant the benefit of doubt, finding the appeal not frivolous.
Whether the appeal will be rendered nugatory if stay is not granted
The nugatory limb was not satisfied because the decree is monetary and refundability was not challenged
The decree sought to be stayed was a monetary decree. The respondent asserted it could refund the decretal amount should the appeal succeed, and the applicant did not challenge that assertion. Both limbs of the Rule 5(2)(b) test must be satisfied; failing the second, the application had to fail.
Legal principles established
#- In a Rule 5(2)(b) application for stay pending appeal, an applicant must show the appeal is arguable and that it will be rendered nugatory if stay is not granted; where the decree is monetary and no challenge is made to the respondent's ability to refund the decretal amount, the nugatory limb fails
- A monetary decree will ordinarily not be the basis for a finding of nugatory-ness where the decree-holder is able to refund the decretal amount should the appeal succeed
Court orders
#- 1.The application dated 15th October 2021 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court ruling of 11th December 2019 pending appeal
The decree is monetary and the applicant did not demonstrate that the respondent would be unable to refund the decretal amount should the appeal succeed; hence the appeal would not be rendered nugatory
Costs
The application is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Given that an arguable appeal is not one that will necessarily succeed, we are prepared to give the applicant the benefit of doubt and say the appeal is not frivolous.
The applicant has not demonstrated that the appeal will be rendered nugatory if we decline to grant the orders sought.
Consequently, the application dated 15th October 2021 fails. It is dismissed with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aberdare Wire Products Limited v Tarmal Wire Products Limited (Civil Appeal (Application) E154 of 2021) [2025] KECA 1154 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1154/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.