Royal Herbs Exporters (SEZ) Limited v County Government of Nyandarua (Civil Application E126 of 2025) [2026] KECA 723 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that businesses must pay disputed county cess while appealing, because the money can be refunded if the appeal succeeds.
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
- 2.Whether the appeal would be rendered nugatory if the injunction and stay sought are not granted
Key legal issues
#Arguability of the intended appeal
The 11 grounds in the draft memorandum, including the constitutionality of the cess levy under the County Finance Act, were arguable, satisfying the first limb.
The court declined to examine the merits, holding that an arguable appeal need only raise a single bona fide ground and is not required to be one that will succeed. The draft memorandum raised 11 grounds disputing the learned judge's findings, including the constitutionality of the levy under the County Finance Act, and the court was satisfied those grounds were arguable without determining their merit.
Whether the appeal would be rendered nugatory absent stay
The applicant failed the nugatory limb: the cess is monetary, tabulated, and recoverable if the appeal succeeds; the applicant was not shown to be exempt from the statutory requirement to pay it.
The High Court had declined to declare the County Finance Act of 2024 unconstitutional, so the applicant, like any other exporter, remains obliged to pay cess. The cess payable is well tabulated and monetary in nature, and the money paid is recoverable if the appeal succeeds. The court also noted the presumption of constitutionality of statutes and found no irreparable harm or inability to refund established.
Applicable legal principles for rule 5(2)(b) applications
The Giella v Cassman Brown principles cited by the respondent do not apply in the Court of Appeal, which is governed by the Court of Appeal Rules, 2022, applying the arguable/nugatory test.
The respondent relied on the injunction threshold in Giella v Cassman Brown, but the court corrected this, stating those principles apply to injunction applications in the High Court and courts applying the Civil Procedure Act, not to this Court. Proceedings in the Court of Appeal are governed by the Court of Appeal Rules, 2022, which impose the twin arguable-appeal and nugatory-appeal test.
Legal principles established
#- Rule 5(2)(b) applications require the applicant to demonstrate twin principles: that the appeal is arguable and that it would be rendered nugatory absent stay.
- An arguable appeal is not one that must necessarily succeed but one that ought to be argued fully; a single bona fide ground suffices.
- The Giella v Cassman Brown injunction principles do not govern rule 5(2)(b) applications in the Court of Appeal; such applications are governed by the Court of Appeal Rules, 2022.
- The Court of Appeal cannot grant a stay of a negative order.
- Statutory provisions enjoy a presumption of constitutionality unless declared otherwise; whether an appeal will be rendered nugatory is determined case by case.
Court orders
#- 1.Prayers 4 and 5 of the Notice of Motion dismissed (the Court cannot stay a negative order)
- 2.The Notice of Motion dated 24th November 2025 dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Petition No. E001 of 2025 (Nyandarua)
- Jurisdiction invoked
- Sections 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Temporary injunctive order restraining the County Government of Nyandarua from imposing cess, charge or fee on the applicant's agricultural produce destined for export pending the intended appeal
Failed the second limb: the cess is monetary and recoverable if the appeal succeeds, so the appeal would not be rendered nugatory
Stay of execution against the High Court's ruling on payment of costs
The Court cannot stay a negative order; prayers 4 and 5 were marked for dismissal
Costs
The application was 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.
For those reasons, the present Notice of Motion dated 24th November 2025 lacks merit. It is hereby dismissed with costs to the respondent.
To succeed, the applicant must successfully demonstrate the following twin principles: that the appeal is arguable and will be rendered nugatory absent stay.
an arguable appeal is not one which must necessarily succeed but one which ought to be argued fully before the Court; one which is not frivolous
we note that prayers 4 and 5 are for dismissal as the Court cannot stay a negative order and will only consider prayer 3 of the application.
In view of the foregoing, we find that the applicant has not demonstrated that it should be exempt from the statutory requirements.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Royal Herbs Exporters (SEZ) Limited v County Government of Nyandarua (Civil Application E126 of 2025) [2026] KECA 723 (KLR)", Case Analysis (2026). Notice of Motion dated 24th November 2025 (rule 5(2)(b) application, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/723/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.