Braeburn Limited v Habakuk Mboya & 4 others
The bottom line
#Braeburn's bid to block residents' restrictions on lane access failed because a workable alternative route meant no irreparable harm pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The Court found at least one bona fide arguable issue, including whether Amboseli Lane is a public road, its statutory classification, and the trial court's treatment of status quo and balance of convenience.
Without pronouncing on the merits, the Court examined the draft memorandum of appeal and identified questions on the status of Amboseli Lane, its classification, and the judge's application of status quo, balance of convenience and access-rights principles as not frivolous. This satisfied the first limb of the rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory
The Court held that Braeburn failed to demonstrate nugatory-ness: the school continues operating via four Gitanga Road gates, the orders regulate rather than block access, and the alleged inconvenience is not irreversible or beyond compensable redress.
The burden lay on Braeburn to show irreversibility or inadequacy of damages. The trial court's orders did not shut down operations or block access to the suit property but merely regulated how access is made pending determination of the suit. Meanwhile, granting the orders would disrupt the residents' sole access route with potentially lasting, difficult-to-undo harm.
Legal principles established
#- An applicant under rule 5(2)(b) must establish both that the intended appeal is arguable and that it would be rendered nugatory if the orders are not granted; satisfying only one limb is insufficient.
- An arguable appeal need not be one that will succeed; it suffices that it merits judicial interrogation on appeal.
- The nugatory test asks whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party; inconvenience capable of redress does not meet the threshold.
Court orders
#- 1.Application dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment and Land Court
- ELC Case No. E532 of 2024
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 43, 47 and 55 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Braeburn Limited v Habakuk Mboya & 4 others", Case Analysis (2026). Notice of Motion dated 12th November 2025 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/393/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.