Geepak Limited & another v Kigio Group Company Limited & 2 others (Civil Appeal (Application) E601 of 2025) [2025] KECA 1594 (KLR)
The bottom line
#Kenya's Court of Appeal stayed an order forcing Geepak to redeposit past rents, but future rents must still go into escrow pending appeal.
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 under Rule 5(2)(b)
- 2.Whether, absent stay, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable because it raises serious points of law: whether a High Court judge could, in a stay application, in substance revisit and vary orders of a court of concurrent jurisdiction, and whether mandatory injunctions can issue at an interlocutory stage
The Court applied the settled Rule 5(2)(b) test that an arguable appeal is one that is not frivolous and raises at least one bona fide point. The applicants' challenges to Ado J.'s assumption of inherent and residual jurisdiction to review Mong'are J.'s orders, and his treatment of mandatory injunctions at interlocutory stage, were held to be neither frivolous nor academic and deserving of full ventilation in the intended appeal.
Nugatoriness - retrospective aspect of Ado J.'s orders
The retrospective direction that historical rents collected from 4th September 2023 be deposited into escrow satisfies the nugatory test, as it would irretrievably prejudice the applicants
The rents had already been applied to loan repayments, utilities and maintenance. Compelling the applicants to recreate those funds would impose an immediate and onerous financial burden and operate as a substantive deprivation that cannot be reversed even if the appeal succeeds. The prejudice, once executed, cannot be undone, so the retrospective portion would render the appeal nugatory.
Nugatoriness - prospective aspect of Ado J.'s orders
The prospective order requiring future rents to be deposited into a joint interest-bearing escrow account is preservatory and does not satisfy the nugatory test
The escrow arrangement keeps the funds intact, traceable and reversible depending on the final outcome, preserving the substratum of the dispute and balancing the rights of the parties. Following Butt v Rent Restriction Tribunal, interim orders should ensure the appeal is not stifled while safeguarding the interests of the successful party. The Court thus tailored relief: stay of the retroactive portion only.
Legal principles established
#- An arguable appeal under Rule 5(2)(b) need not necessarily succeed; a single bona fide ground that is not frivolous suffices
- The nugatory limb requires consideration of whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party
- A retrospective order requiring a party to deposit funds already received and applied may render an appeal nugatory because the prejudice cannot be undone even if the appeal succeeds
- Preservatory orders securing funds in escrow pending appeal do not render an appeal nugatory; they preserve the substratum of the dispute
Court orders
#- 1.Stayed the order of the High Court (Ado J.) dated 24th July 2025 requiring the applicants to deposit into escrow all rents collected from 4th September 2023 to the date of that ruling, pending the intended appeal
- 2.Ordered that the order requiring future rents to be deposited into a joint interest-bearing escrow account in the names of the advocates for the applicants and the 2nd respondent shall remain in force, varied to begin from the date of the ruling
- 3.Directed the parties to open the said account and ensure compliance
- 4.Declared that the applicants shall not be required to deposit sums already received and applied prior to the date of the ruling
- 5.Ordered that the costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Milimani HCCOMM No. E140 of 2023 (ruling of Ado J. dated 24th July 2025)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)
Relief refused
#Stay of the prospective limb of Ado J.'s order (deposit of future rents into escrow)
The prospective order is preservatory; it safeguards the rental income and preserves the substratum of the dispute rather than rendering the appeal nugatory
Costs
The costs of this application shall abide the outcome of the intended appeal.
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.
It is sufficient if a single bona fide arguable ground of appeal is raised. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
In this sense, the retrospective aspect of the order would render the appeal nugatory: once executed, the prejudice cannot be undone.
In our judgment, therefore, the nugatory test is satisfied with respect to the retrospective part of Ado, J.'s orders, but not with respect to their prospective part. The just outcome is to stay only the retroactive portion while allowing the prospective safeguard to remain operative.
The costs of this application shall abide the outcome of the intended appeal.
For the avoidance of doubt, the applicants shall not be required to deposit sums already received and applied prior to the date of this ruling.
Issues in the judgment
#The case number of the present application is not expressly stated; only the Notice of Motion date (30th July 2025) identifies it, and the application number must be inferred from the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geepak Limited & another v Kigio Group Company Limited & 2 others (Civil Appeal (Application) E601 of 2025) [2025] KECA 1594 (KLR)", Case Analysis (2025). Civil Application No. E... of 2025 (Notice of Motion dated 30th July, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1594/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.