Sbm Holdings Limited v Sultan Khimji (suing As The Seller's Representatives On Behalf of The Former Shareholders of Fidelity Commercial Bank Limited) & 1 other
The bottom line
#Kenya's Court of Appeal paused a High Court commercial case, holding a company denied a fresh chance to seek arbitration had an arguable appeal involving the constitutional right to a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable where the applicant, joined after an earlier stay ruling, was refused a fresh section 6 Arbitration Act stay application
The Court found at least one bona fide arguable ground: whether the applicant was denied the right to be heard under section 6 of the Arbitration Act and Article 50 of the Constitution given it was not a party when the earlier ruling was delivered.
Applying Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court held an arguable appeal need not succeed but must not be frivolous, and no definitive findings should be made at that stage. The applicant raised five grounds; two went to whether the trial Judge erred in holding the only remedy was appeal of the Mabeya, J. ruling when the applicant was admittedly not a party to it. That raised a genuine question of the right to be heard fit for full ventilation on appeal.
Whether the appeal would be rendered nugatory if the High Court proceedings continue
Because the intended appeal concerns the non-derogable Article 50(1) right to a fair hearing, the nugatory limb was satisfied and a stay was warranted.
The Court noted the serious, grave and fundamental interruption a stay causes, citing Meta Platforms and NNPC v Odidere Enterprises, and the general practice of not granting stays. However, the applicant's asserted right to a fair hearing is non-derogable under Article 50(1). If the trial proceeded and the appeal later established a fair-hearing violation, the prejudice would be irreversible; therefore the balance tilted toward staying proceedings until the appeal is determined.
Legal principles established
#- An appeal under Rule 5(2)(b) must satisfy both limbs: a single bona fide arguable ground, and that the appeal will be rendered nugatory unless a stay is granted.
- Where the subject of an intended appeal implicates the non-derogable right to a fair hearing under Article 50(1) of the Constitution, the balance tilts in favour of a stay of proceedings.
Court orders
#- 1.An order of stay of further proceedings in High Court Commercial Case No. E333 of 2022 until the hearing and determination of the applicant's appeal
- 2.Costs to abide the outcome of the appeal
- On appeal from
- High Court of Kenya
- Nairobi High Court Commercial Case No. E333 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sbm Holdings Limited v Sultan Khimji (suing As The Seller's Representatives On Behalf of The Former Shareholders of Fidelity Commercial Bank Limited) & 1 other", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/232/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.