Agnes Wambui Manjeru v Mahesh Shah & 5 others
The bottom line
#Kenya's Court of Appeal refused to pause a land case, confirming that early trial progress and delay defeat stay applications.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Court of Appeal's jurisdiction under Rule 5(2)(b)
Rule 5(2)(b) is a tool of preservation of the substratum of an intended appeal, exercising the Court's wide and unfettered inherent discretionary jurisdiction.
Relying on Trust Bank Ltd v Investech Bank, the Court described the Rule 5(2)(b) jurisdiction as discretionary and wide. Relying on the Supreme Court's decision in KNUCT, it accepted that the rule illuminates the Court of Appeal's inherent discretionary jurisdiction to preserve the substratum of an intended appeal, rather than an original jurisdiction.
Whether the intended appeal was arguable
The intended appeal was arguable, since whether the trial Judge exercised her discretion judiciously in refusing further evidence is a bona fide arguable ground.
The Court held that whether to admit further evidence is discretionary and case-specific, and the gravamen of the intended appeal is whether the learned Judge exercised that discretion judiciously and not on a whim. Whether the appellate bench would interfere is for that bench, but the point passed the low arguability threshold.
Whether the intended appeal would be rendered nugatory without a stay of proceedings
The applicant failed to demonstrate nugatoryess: only two of seven defence witnesses had testified, the documents could still be put to those witnesses in cross-examination, and further evidence can be admitted on appeal under Rule 31(1)(b).
The Court noted the concession that the defence case had not reached an advanced stage, with about seven witnesses yet to testify, so the applicant could still participate fully and introduce her documents. Should she lose and appeal, she could seek to adduce further evidence under Rule 31(1)(b). Her unexplained four-month delay in filing the application also weighed against her.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both limbs - an arguable intended appeal and that the appeal will be rendered nugatory if stay is not granted; one limb alone is insufficient.
- An arguable appeal need not succeed; it is one that is not frivolous and ought to be argued fully, without definitive findings at the interlocutory stage.
- In considering stay of proceedings, the court balances the applicant's right of appeal and risk of irreparable harm against the respondent's right to have the case heard and determined, and unexplained delay is a relevant factor.
Court orders
#- 1.The Notice of Motion dated 25th November 2024 is dismissed
- 2.Costs of the application to the 1st respondent
- On appeal from
- Environment and Land Court at Nairobi
- ELC No. 593 of 2016 – Mahesh Shah v Chief Lands Registrar & 5 others
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (derived from Article 164(3) of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Wambui Manjeru v Mahesh Shah & 5 others", Case Analysis (2025). Notice of Motion dated 25th November 2024 in intended appeal from Nairobi ELC No. 593 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1848/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.