International Livestock Research Institute & 1 other v Solomon Kikemu Muasa & 7 others

The Court restated principles it described as settled, drawing on Stanley Kangethe Kinyanjui v Tony Ketter. Arguability requires only one bona fide arguable ground; the ground need not succeed. The nugatory limb asks whether the appeal, if successful, would be futile absent stay. Because the relief sought was a stay of proceedings rather than of execution, the Court added a further requirement, drawn from Lalita Devi Lalchand Galot and Halsbury's Laws of England, that exceptional circumstances must be shown to warrant so drastic an order.

The applicants proposed to argue that the ELRC lacked jurisdiction over an organisation protected by Section 9 of the Privileges and Immunities Act as read with the Host Country Agreement and Legal Notice No. 2 of 2001, and that the Host Country Agreement conferred no discretion on the Ministry of Foreign Affairs to waive immunity in default of a negotiated settlement. Applying the undemanding arguability threshold, the Court found the waiver point alone sufficient: it raised substantial questions about the nature and scope of the immunity of international organisations and their designated officials.

The Court fused the nugatory limb with the exceptional-circumstances requirement. Because the intended appeal challenges the applicants' subjection to the ELRC proceedings themselves, allowing the petition to continue would produce the very result complained of: the applicants would have participated in proceedings they contend their immunity forbids, and judicial time would be wasted if the appeal succeeded. The trial judge's directions for expeditious disposal sharpened the risk. That combination, the Court held, met the exceptional-circumstances test, justifying a stay of proceedings rather than merely of execution.