Bashir v Kenya Breweries Ltd & 10 others
The bottom line
#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 twin principles under Rule 5(2)(b) of the Court of Appeal Rules have been satisfied - arguability of the appeal and whether the appeal would be rendered nugatory absent stay
Key legal issues
#Arguability of the intended appeal
The applicant's grounds challenging the validity findings of the trial court were arguable and worthy of consideration at the hearing of the main appeal.
The court reviewed the thirteen grounds in the draft Memorandum of Appeal, including challenges to the validity of the certificate of lease, the extent of the 1st respondent's subdivision and registration, and whether the interest crystallised without registration. Even a single bona fide ground renders an appeal arguable; these grounds were not frivolous.
Whether the appeal would be rendered nugatory absent stay
The nugatory limb was satisfied because the applicant was in occupation, had put up construction, and eviction would prejudice her.
The court found the 1st respondent's assertion that the applicant was not in occupation contradicted by the trial court's site visit, the plaint's claim for vacant possession, and the eviction order with 90 days to vacate. Arguing at appeal stage that occupation was never pleaded was untenable; eviction would prejudice the applicant who had constructed on the land.
Legal principles established
#- A Rule 5(2)(b) applicant must satisfy both the arguability and nugatory limbs conjunctively; a single bona fide ground suffices for arguability.
- An arguable appeal need not be one that will necessarily succeed; it suffices that it is not frivolous.
Court orders
#- 1.Pending the hearing and determination of the intended appeal, there shall be a stay of the Judgement and/or decree in Mombasa ELC Case No. 46 of 1996 dated and delivered by Kibunja, J. on 1st October 2025
- 2.Costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Case No. 46 of 1996
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
In the end, we find and hold that the applicant has established the twin principles under Rule 5(2)(b), which principles must be discharged conjunctively.
pending the hearing and determination of the intended appeal, there shall be a stay of the Judgement and/or decree in Mombasa ELC Case No. 46 of 1996 dated and delivered by Kibunja, J. on 1st October 2025
even a single bona fide ground of appeal, will render the appeal arguable
The fact is that, if the applicant is evicted, she stands to be prejudiced, as she has even put up some construction on the land.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bashir v Kenya Breweries Ltd & 10 others", Case Analysis (2026). Civil Application E004 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1765/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.