Mohamed Rabe T/A Safari Plaza Limited v Total Kenya Limited
The bottom line
#Kenya's Court of Appeal refused to stop Total Kenya evicting a petrol station operator, because money damages could compensate any loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court was satisfied the intended appeal is not frivolous, noting the complaint that the learned Judge failed to appreciate that the dispute was live before the arbitration tribunal.
Applying the settled Rule 5(2)(b) principles, the Court found on the material before it that the applicant had sufficiently demonstrated an arguable appeal, citing Stanley Kangethe Kinyanjui v Tony Ketter. It reminded itself that arguability does not require proof that the appeal will succeed. The first limb of the test was therefore met, but this alone was not sufficient for the relief sought.
Whether the appeal would be rendered nugatory absent interim relief
The nugatory limb failed because possession of the petrol stations had passed to other operators and the claimed loss was quantifiable and compensable in damages.
The Court noted the respondent's evidence that the stations had been taken over by different operators under new Marketing Licence Agreements. It further reasoned that the alleged loss of investment was quantifiable and that the applicant had not demonstrated that damages awarded on a favourable arbitral outcome would be inadequate. With both limbs not satisfied, the application could not succeed.
Whether interim protection should issue pending the second arbitration
The High Court had dismissed the Section 7 Arbitration Act application and the Court of Appeal declined to preserve the status quo pending appeal, dismissing the application with costs.
The applicant sought to maintain its position as licensee of two petrol stations pending arbitration and the intended appeal. The High Court had held that the complaints were monetary claims addressable in arbitration. On the Rule 5(2)(b) application the Court found neither an arguability-plus-nugatory basis for relief, and dismissed the application with costs to the respondent.
Legal principles established
#- An arguable appeal for purposes of Rule 5(2)(b) need not be one that will necessarily succeed; it is enough that it is not frivolous.
- An applicant under Rule 5(2)(b) must demonstrate that the loss claimed is not quantifiable or compensable by damages; where damages suffice, the nugatory-prong fails.
Court orders
#- 1.The application dated 28th February 2025 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- High Court
- Application dated 15th October 2024 (ruling of 13th February 2025)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Rabe T/A Safari Plaza Limited v Total Kenya Limited", Case Analysis (2025). Application dated 28th February 2025 (Notice of Appeal dated 14th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1739/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.