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Court of AppealDismissedNotice of Motion dated 13th February 2025 (Civil Application, Court of Appeal, Mombasa)

Unifresh Exotics (K) Limited v Rimber (Civil Application E010 of 2025) [2025] KECA 1812 (KLR)

Court of Appeal of Kenya
7 November 2025
1,545 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 land case, saying the appeal could still fix any problems later.

What this practically means

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Executive summary

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By a Notice of Motion dated 13th February 2025 under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2022, Unifresh Exotics (K) Limited sought a stay of further proceedings in ELC Case No. 427 of 2017 pending an intended appeal against a ruling of 12th February 2025 declining to set aside ex-parte proceedings. The Applicant's counsel had arrived 15 minutes late to a virtual hearing due to a tyre burst; the defence witness was cross-examined in his absence, the defence case was closed, and final submissions were fixed. The Court of Appeal, Mombasa (Murgor, Nyamweya and Ngenye-Macharia, JJA) applied the settled two-limb rule 5(2)(b) test drawn from Stanley Kange'the Kinyanjui v Tony Ketter and Trust Bank v Investech Bank. On the first limb, it accepted that a solitary arguable ground suffices and found the intended appeal arguable, while cautioning that it expressed no view on its merits. On the second limb, it held the Applicant had not shown what further evidence it had yet to adduce or how its absence was detrimental; even if the suit concluded and the appeal succeeded, the trial judgment could be set aside and the ex-parte proceedings expunged, so the appeal would not be rendered nugatory. The court also noted that a stay of proceedings is a serious remedy granted only in exceptional circumstances. The application was dismissed with costs in the intended appeal. As an interlocutory application, the decision does not disturb any decision below; it binds neither party on the merits, though its restatement of the rule 5(2)(b) threshold guides lower courts and future applicants.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable under rule 5(2)(b)
  2. 2.Whether, unless a stay of proceedings is granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal against the refusal to set aside ex-parte proceedings is arguable

Holding

The intended appeal was found arguable on the solitary ground that counsel's 15-minute delay was an excusable mistake and the Applicant should have been heard, but the court said no more lest it embarrass the bench hearing the appeal

Reasoning

The court held that the decision declining to set aside ex-parte proceedings was an exercise of discretion it was disinclined to interfere with. Nevertheless, a solitary arguable ground suffices for the first limb of the rule 5(2)(b) test. Whether the appeal would succeed was a separate matter left to the appeal bench.

p. 3
02

Whether the intended appeal would be rendered nugatory if proceedings were not stayed

Holding

The nugatory limb failed because the Applicant did not disclose what further evidence remained to be adduced, and a successful appeal could still result in the trial judgment being set aside and the ex-parte proceedings expunged

Reasoning

The court reviewed the material placed before it and found nothing showing what further evidence the Applicant had yet to adduce or how its absence was detrimental. Even if the suit were finalized and the appeal succeeded, the trial judgment could always be set aside and the ex-parte proceedings expunged, so the appeal would not be rendered nugatory.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that unless the orders sought are granted, the appeal, if successful, will be rendered nugatory
  • A stay of proceedings is a discretionary power to be exercised sparingly as it interrupts the normal court process and should only be granted in exceptional circumstances
  • A single arguable ground of appeal is sufficient to satisfy the arguability limb of rule 5(2)(b)

Court orders

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  1. 1.The Notice of Motion dated 13th February 2025 is dismissed
  2. 2.Costs in the intended appeal

The bench

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

majority
majority
On appeal from
Environment and Land Court
ELC Case No. 427 of 2017
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of further proceedings in ELC Case No. 427 of 2017 pending the intended appeal

The Applicant failed to satisfy the second limb of the rule 5(2)(b) test - the appeal would not be rendered nugatory since a judgment of the trial court could always be set aside and the ex-parte proceedings expunged on appeal

p. 3

Costs

Costs in the intended appeal.

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.

an applicant must demonstrate that the appeal or intended appeal is arguable; and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
p. 2Rule 5(2)(b) threshold principles
granting of stay of proceedings is a discretionary power that should be exercised sparingly as it interrupts the normal court process, and is a serious remedy that should only be granted in exceptional circumstances.
p. 3Stay of proceedings - exceptional remedy
The Notice of Motion dated 13th February 2025 lacks merit and is hereby dismissed. Costs in the intended appeal.
p. 3Final orders

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, "Unifresh Exotics (K) Limited v Rimber (Civil Application E010 of 2025) [2025] KECA 1812 (KLR)", Case Analysis (2025). Notice of Motion dated 13th February 2025 (Civil Application, Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1812/eng@2025-11-07

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