Ushago Diani Investment Limited v Abdulwahab (Civil Appeal (Application) E209 of 2024) [2026] KECA 85 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a Mombasa land ruling because you cannot 'stay' an order that only dismissed an application, and the appeal lacked arguable grounds.
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 intended appeal is arguable under the first limb of the rule 5(2)(b) twin principle
- 2.Whether the appeal would be rendered nugatory absent the orders sought (second limb)
- 3.Whether a negative order (striking out the applicant's Motion) is capable of being stayed
Key legal issues
#Whether a negative order (striking out an application) can be stayed under rule 5(2)(b)
A negative order is incapable of being stayed; the order striking out the applicant's Motion dated 7th November 2023 could not be stayed.
Relying on Western College of Arts and Applied Sciences v E. P. Oranga and Co-Operative Bank of Kenya Limited v BIFU (Kenya), the Court held that orders in the nature of negative orders - which merely strike out an application without requiring a party to do or refrain from doing anything - are not amenable to a stay of execution under rule 5(2)(b).
Whether the intended appeal was arguable
The intended appeal was not arguable: the grounds in the memorandum of appeal attacked an earlier ruling (27th September 2023 on res judicata), not the impugned ruling dated 15th October 2024, so not even a single arguable ground was disclosed.
The Court examined the memorandum of appeal dated 15th October 2024 and found its eight grounds all related to the earlier res judicata ruling and complaints about submissions not being considered, none of which engaged the ruling striking out the Motion. Having failed the first limb, the Court found no need to consider the nugatory limb.
Whether the second (nugatory) limb needed consideration
No - once the appeal is found not arguable, no useful purpose is served by inquiring into the nugatory limb; the limbs are conjunctive.
The Court treated the twin principles as conjunctive: both must be satisfied. Having found the appeal not arguable, the inquiry into whether the appeal would be rendered nugatory was unnecessary and the Motion failed in its entirety.
Legal principles established
#- Negative orders are incapable of being stayed under rule 5(2)(b) of the Court of Appeal Rules
- An applicant under rule 5(2)(b) must satisfy both limbs of the twin principle: an arguable appeal and that the appeal will be rendered nugatory if the orders are not granted
- A single arguable ground suffices for the first limb; it need not be one that must necessarily succeed
Court orders
#- 1.The applicant's Notice of Motion dated 16th October 2024 is dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 12 of 2023 (ruling dated 15th October 2024)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution and injunction pending appeal)
Relief refused
#Stay of execution of the ELC ruling dated 15th October 2024
The impugned ruling is a negative order, incapable of being stayed under rule 5(2)(b); and the intended appeal was found not arguable
Temporary injunction restraining the respondent from dealing with the suit property
The intended appeal was not arguable, so the first limb of the twin principle failed and no inquiry into the nugatory limb was necessary
Costs
The Motion is dismissed with no order as to costs.
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.
negative orders are incapable of being stayed.
In view of the foregoing, the record as put to us does not disclose even a single ground on which the intended appeal is founded.
Having considered the record, the applicant's Motion dated 16th October 2024, the afidavit in support, the submissions by counsel, the cited authorities and the law, we reach the inescapable conclusion that the Motion fails and is hereby dismissed with no order as to costs.
Issues in the judgment
#The judgment variously dates the impugned ruling as 15th October 2024 and 15th October 2023 in adjacent passages
The applicant is referred to as 'he/his' in one passage though it is a limited company
The memorandum of appeal is dated 15th October 2024, the same date as the impugned ruling it appeals against
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ushago Diani Investment Limited v Abdulwahab (Civil Appeal (Application) E209 of 2024) [2026] KECA 85 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 16th October 2024 under rule 5(2)(b), Court of Appeal Rules, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/85/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.