The Eacfphab Ltd & 2 others v Othere Limited & 4 others
The bottom line
#Kenya's Court of Appeal refused to block an eviction because the eviction came from an arbitration award, not the lawsuit being appealed.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The applicants satisfied the arguability principle on the ground that the ELC may have erred in finding the suit res judicata.
The applicants raised several grounds, including whether the ELC erred in holding that ELC EPCC No. E008 of 2023 was res judicata and in striking it out. Applying the settled rule that a single arguable point suffices, the Court found the first principle under rule 5(2)(b) met, without making conclusive findings on the merits.
Whether the appeal would be rendered nugatory absent an injunction against eviction
The nugatory principle was not satisfied because eviction was not an issue in the struck-out suit and any loss would be compensable in damages.
The Court distinguished what was before the ELC (a suit struck out as res judicata, in which reinstatement was the only relief on success) from the eviction, which flowed from the arbitral award between the 3rd applicant and the respondents, adopted as a court order, with no appeal against it before the Court. Success on appeal would only reinstate the suit; failure to restrain eviction would not affect it, and damages would suffice.
Legal principles established
#- An applicant for an injunction pending appeal under rule 5(2)(b) must satisfy both the arguability and the nugatory principles, and an applicant who fails the nugatory limb cannot obtain the orders.
- Even one arguable point is sufficient to satisfy the arguability principle under rule 5(2)(b).
- In assessing whether an appeal would be rendered nugatory, the court asks whether what is sought to be stayed is reversible, and if not, whether damages would be sufficient recompense, considering each case on its unique facts.
- Where eviction stems from an arbitral award adopted by the court and not from the suit under appeal, an injunction pending appeal against that suit cannot restrain the eviction, as the appeal if successful would merely reinstate the suit.
Court orders
#- 1.The application dated 27th September 2024 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court at Nairobi
- ELC EPCC No. E008 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and section 3A of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Eacfphab Ltd & 2 others v Othere Limited & 4 others", Case Analysis (2025). Civil Application No. E... of 2024 (Nairobi) - application dated 27th September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1535/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.