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Court of AppealDismissed· [2025] KECA 1823 (KLR)

Nitin Jayantilal Rajani & 1 other v Shailesh Jayantilal Rajani & 2 others

Court of Appeal
7 November 2025
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a Mombasa land case, ruling that parties who benefit from a court order cannot then turn around and challenge it.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th September 2024, the applicants sought a stay of proceedings in ELC Cause No. 232 of 2019 pending an intended appeal against a ruling of N. Matheka, J delivered on 31st January 2024, in which the Judge ordered the respondents to give discovery of specified documents save for privileged documents. The applicants contended that the ruling was ambiguous as to the extent of discovery obligations, that the respondents were withholding critical transactional documents under the guise of privilege, and that they would be prejudiced if the trial proceeded without full discovery. All three respondents filed replying affidavits deposing to compliance with the discovery order, and noting that the applicants had participated in case management and had commenced the hearing of the main suit on 5th November 2024. The Court of Appeal at Mombasa (Nyamweya, Laibuta and Ngenye-Macharia, JJAA) dismissed the application. It held that the applicants were approbating and reprobating: they had accepted the benefit of the discovery ordered while simultaneously challenging the validity of the order directing it, conduct the Court found unacceptable, applying Evans v Bartlam. The Court further held that it has no role in enforcing trial court orders of that nature and cannot stay proceedings already underway merely to interpret an alleged ambiguity in a discovery order; a party aggrieved by non-compliance or ambiguity has recourse to the trial court for clarification and enforcement. On the twin principles under rule 5(2)(b) of the Court of Appeal Rules, the Court found the intended appeal not arguable and, that being so, declined to consider whether it would be rendered nugatory. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal is arguable under the twin principles of rule 5(2)(b)

Holding

The appeal grounds founded on the alleged ambiguity of the discovery order are not arguable; having failed the first limb, the Court did not consider the nugatory limb.

Reasoning

The Court examined the nine draft grounds of appeal, all premised on the contention that the discovery order reserving privileged documents was ambiguous. It held counsel are expected to know what constitutes privileged documents, that the applicants participated in case management and commenced trial without grievance, and that the respondents deposed to compliance. The contention was therefore not arguable, and the second limb of the twin test fell away.

p. 4
02

Whether the applicants' conduct of taking benefits under the discovery order while appealing against it disentitles them to a stay

Holding

Yes. The applicants were approbating and reprobating, an unacceptable conduct that undermined their application.

Reasoning

The applicants accepted and benefited from the discovery they obtained under the impugned ruling, did not deny documents were shared, and proceeded with case management and the hearing with their consent. Turning around to challenge the same order as ambiguous was inconsistent conduct. Relying on Evans v Bartlam, the Court held that the doctrine of approbation and reprobation applies where a party accepts a benefit under a judgment while alleging its invalidity.

p. 4
03

Whether the Court of Appeal can stay proceedings to enforce or interpret a trial court's discovery order

Holding

No. The Court has no role in enforcing such orders; remedies lie in the trial court.

Reasoning

The Court reasoned that if the trial court's discovery orders were disobeyed, counsel knew the appropriate steps, and the applicants could return to the trial court for clarification of what privileged documents mean and for enforcement orders. The appellate court therefore cannot stay proceedings already underway merely to interpret the impugned ruling and pronounce on the alleged ambiguity.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must establish an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • The Court of Appeal will not stay proceedings already underway in the court below merely to interpret an alleged ambiguity in an interlocutory discovery order.
  • A party cannot approbate and reprobate - accept the benefit of a discovery order while simultaneously challenging its validity.
  • A party aggrieved by non-compliance with or ambiguity in a trial court's discovery order has recourse to the trial court for clarification and enforcement.

Court orders

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  1. 1.The applicants' Notice of Motion dated 24th September 2024 is dismissed
  2. 2.Costs of the application are awarded to the respondents
On appeal from
Environment and Land Court
ELC Cause No. 232 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)

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, "Nitin Jayantilal Rajani & 1 other v Shailesh Jayantilal Rajani & 2 others", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1823/eng@2025-11-07

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