Kenya Railways Corporation v Jihan Freighters Limited (Civil Appeal (Application) E220 of 2024) [2026] KECA 47 (KLR)
The bottom line
#The Court of Appeal refused Kenya Railways' bid to pause a Mombasa land court injunction, because a pending appeal alone does not justify staying interim orders.
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 applicant demonstrated an arguable appeal under the first limb of the rule 5(2)(b) twin principle
- 2.Whether the appeal, if successful, would be rendered nugatory absent stay of execution of the ELC ruling
- 3.Whether stay of proceedings in the ELC pending appeal should be granted
Key legal issues
#Arguable appeal under rule 5(2)(b)
The applicant satisfied the first limb - more than one ground of appeal was arguable.
The court applied the settled principle that an arguable appeal need not be one that must succeed; a single arguable ground, not frivolous and meriting full argument, suffices. More than one of the grounds in the memorandum of appeal was found arguable, but the court declined to opine on whether the appeal would ultimately succeed.
Nugatory value under rule 5(2)(b)
The applicant failed to show the appeal would be rendered nugatory; staying interim status-quo orders would prematurely grant the relief sought in the appeal.
The impugned orders merely maintained the status quo pending the hearing of the petition. Staying them would effectively allow what the applicant seeks in the substantive appeal. If successful on appeal, the applicant would vindicate its actions and regain possession, so the appeal could not be rendered nugatory, particularly on the disputed question of possession.
Stay of proceedings in the trial court pending appeal
Stay of proceedings was refused; the discretionary power is not exercised where the twin principles are not met, and it is a grave remedy exercised sparingly.
The court distinguished stay of proceedings from stay of execution, observing that stay of proceedings seriously interferes with a litigant's right to conduct litigation, access to justice and fair trial. Following Silverstein, each case depends on its own facts, but the power is unavailable where the conjunctive twin principles are unsatisfied.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs of the twin principle: an arguable appeal and that the appeal would be rendered nugatory if stay is not granted; a single arguable ground suffices and need not be one that must succeed.
- Stay of execution of interim status-quo orders will be refused where it would effectively grant the applicant the relief sought in the substantive appeal; a successful appeal would not thereby be rendered nugatory.
- Stay of proceedings pending appeal is a grave judicial action interfering with access to justice and fair hearing, exercised sparingly and only in exceptional cases.
Court orders
#- 1.Dismissal of the applicant's Notice of Motion dated 14th November 2024
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Petition No. E013 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the ruling and orders of the ELC dated 9th October 2024 pending appeal
Stay of the interim injunction would prematurely determine the appeal; the applicant failed to demonstrate that the appeal would be rendered nugatory
Stay of proceedings in ELC Petition No. E013 of 2023 pending appeal
The power is discretionary and not available where the applicant has failed to satisfy the conjunctive twin principles
Costs
The applicant’s Motion is dismissed with costs to the respondent.
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.
we reach the inescapable conclusion that the applicant’s Motion fails and is hereby dismissed with costs to the respondent.
To stay execution of the interim injunction would amount to premature determination of the applicant’s appeal in its favour.
even a single arguable ground would sufice; and that it need not be one that must necessarily succeed, but one which is not frivolous and merits to be argued fully.
Stay of proceedings should not be confused with stay of execution pending appeal.
Issues in the judgment
#The judgment does not state the specific appeal/application number of the motion before the Court of Appeal; only the motion date and the underlying ELC petition number are given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Railways Corporation v Jihan Freighters Limited (Civil Appeal (Application) E220 of 2024) [2026] KECA 47 (KLR)", Case Analysis (2026). Civil Application No. E... of 2024 (Motion dated 14th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/47/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.