Luxury Suttles Tours & Travel Ltd & another v Njoroge & another (Civil Application E148 of 2025) [2026] KECA 206 (KLR)
The bottom line
#The Court of Appeal refused to halt enforcement of a Kshs 4.4 million judgment, finding the transport company's forum-shopping conduct disqualified it from a stay.
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 respondents' objections on the validity of the notice of appeal and the absence of a draft memorandum of appeal had merit
- 2.Whether the applicants had demonstrated an arguable intended appeal
- 3.Whether the intended appeal, if successful, would be rendered nugatory absent stay
- 4.Whether the applicants' conduct disentitled them to the discretionary remedy under rule 5(2)(b)
Key legal issues
#Whether the intended appeal was arguable
The application failed on arguability: the applicants had not appealed against the decree itself, and liability to satisfy the decree rests primarily on the insured parties.
The intended appeal targeted only the High Court decision setting aside the stay granted by the subordinate court; the decree of the trial court was never challenged or appealed against. Since the applicants, as insured parties, bear primary liability for the decree, the Court was not persuaded that any arguable issue arose on the intended appeal.
Whether the intended appeal would be rendered nugatory
Even if arguable, the appeal would not be rendered nugatory because the applicants have a remedy against their insurers; possible delay in compensation is not nugatory.
The Court held that the existence of an alternative remedy against the insurer means a successful appeal would not be a paper judgment. That the applicants may have to wait a while for compensation does not amount to the appeal being rendered nugatory, so the second limb of the rule 5(2)(b) test also failed.
Whether the applicants' conduct barred the discretionary relief
The applicants abused the process of the court by obtaining an irregular stay from the subordinate court after the High Court had set aside stay, and were undeserving of the discretionary remedy.
After failing to obtain ex parte stay from the Court of Appeal, the applicants returned to the subordinate court and obtained a stay in a matter already determined by the High Court. Such oppressive, non-bona fide conduct, pursuing the same remedies in different fora, constitutes abuse of process, and a rule 5(2)(b) order is unavailable to undeserving parties.
Objections to the notice of appeal and absence of a draft memorandum
Both objections were rejected: validity of a notice of appeal is not determined in a rule 5(2)(b) application absent a rule 86 strike-out application, and lack of a draft memorandum is not per se fatal.
A party challenging a notice of appeal must use the prescribed remedy under rule 86, which the respondents had not done. On the memorandum, the Court reiterated that arguability may be demonstrated from the grounds set out in the application itself where the issues are discernible, so the absence of a draft memorandum was not fatal.
Legal principles established
#- Unless admitted by the opposite party, an application under rule 5(2)(b) is not the occasion to determine the validity of a notice of appeal; the prescribed remedy is an application to strike out under rule 86.
- Lack of a draft memorandum of appeal is not fatal to a rule 5(2)(b) application if the issues for the intended appeal can be discerned from the application itself.
- A rule 5(2)(b) applicant must demonstrate both an arguable appeal and that it would be rendered nugatory absent the order.
- Conduct that is not bona fide, is oppressive, or involves simultaneously pursuing the same remedies in different fora constitutes abuse of process and disentitles a party to the discretionary remedy under rule 5(2)(b).
Court orders
#- 1.The application dated 12th February 2025 for stay of execution and stay of further proceedings pending appeal was dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kerugoya
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution and stay of further proceedings pending appeal)
Relief refused
#Stay of execution and stay of further proceedings pending appeal under rule 5(2)(b)
The applicants did not demonstrate an arguable appeal; the intended appeal would not be rendered nugatory because the applicants have a remedy against their insurers; and the applicants' conduct amounted to abuse of the process of the court, disentitling them from a discretionary remedy
Costs
The application was dismissed with costs to the respondents.
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 find absolutely no merit in this application and the same is hereby dismissed with costs to the respondents. It is so ordered.
An order under rule 5(2) (b) is a discretionary remedy and is not available to parties who demonstrates by their conduct that they are not deserving of such remedy.
Lack of a draft memorandum of appeal per se is not fatal if the Court can discern from the Application the issues that the applicant wants to pursue in the appeal.
The Court has stated time without number that unless admitted by the opposite party, an application under rule 5(2) (b) is not the occasion to determine the validity or otherwise of a notice of appeal.
Conduct, like that of the applicants in this case, which is not bona fides or is oppressive, or in which a party is simultaneously pursuing the same remedies in direct legal fora, constitutes abuse of the process of the court.
Issues in the judgment
#Internal date inconsistency: paragraph 20 states the applicants approached the Court on '12th March 2005' whereas paragraph 7 records the notice of appeal as lodged on 12th March 2025; the 2005 date is evidently a typographical error.
The statute is rendered inconsistently as 'Motor Vehicle (Third Party Party Risks) Act' in paragraph 4, containing a duplicated word.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luxury Suttles Tours & Travel Ltd & another v Njoroge & another (Civil Application E148 of 2025) [2026] KECA 206 (KLR)", Case Analysis (2026). Application dated 12th February 2025 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/206/eng@2026-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.