https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1654

Kenya Hotel Properties Ltd & another v Willisden Investments Ltd & 2 others (Civil Appeal (Application) E815 of 2025 & Civil Application E577 of 2025 (Consolidated)) [2026] KECA 1654 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1654 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E815 of 2025 & Civil Application E577 of 2025 (Consolidated) PO Kiage, LA Achode & WK Korir, JJA July 31, 2026 Between Kenya Hotel Properties Limited Applicant and Willisden Investments Limited 1st Respondent Development Bank Of Kenya Limited 2nd Respondent As consolidated with Civil Application E577 of 2025 Between Development Bank Of Kenya Limited Applicant and Willisden Investments Limited 1st Respondent Kenya Hotel Properties Limited 2nd Respondent (Being an application for the stay of execution of the Ruling of the High Court of Kenya (Visram Aleem Alnashir, J.) dated 18th September 2025inHC COMM. Case No. 367 of 2000) Ruling 1.These two applications being Application No. E815 of 2025 and Application No. E577 of 2025 came before us for hearing on 11th November 2025. By consent of the parties, the applications arising from the same ruling were consolidated and Application No. E577 of 2025 was designated as the lead file. The applicants in the two applications seek to stay the ruling and orders of the High Court at Nairobi Commercial & Tax Division, delivered by Visram J, on 18th September 2025, in HCCOMM No. 367 of 2000. 2.In Application No. E815 of 2025 the applicant, Kenya Hotel Properties Limited, sought an order for stay of execution of the decree dated 2nd April 2009, and the ruling and orders of the High Court delivered on 18th September 2025 in HCCOMM No. 367 of 2000, Willesden Investments Limited v Kenya Hotel Properties Limited, pending the hearing and determination of its intended appeal. The application was precipitated by the commencement of execution proceedings by the 1st respondent, including the proclamation UPON movable property pursuant to the impugned ruling. 3.The motion is premised on the grounds set out on its face. It is supported by the affidavit sworn on 2nd October, 2025, by Kennedy Kulei, and urged through the submissions dated 6th November 2025, filed on their behalf by Wamae & Allen LLP Advocates. 4.The applicant contends that the execution process is unlawful as it was founded on a bank guarantee that had never been released by the Court. In particular, the applicant asserts that the Court of Appeal, in Willesden Investments Limited v Kenya Hotel Properties Limited [2019] KECA 62 (KLR), dismissed the 1st respondent’s application for the release of the bank guarantee, rendering the subsequent execution process irregular and unlawful. The applicant urges that the intended appeal is arguable because the decree sought to be enforced is founded on a title that was subsequently declared null and void by the Environment and Land Court, (ELC), in a judgment delivered on 30th January 2025. According to the applicant, the ELC found that Grant No. IR 66986 relating to L.R. No. 209/12748 had been unlawfully created from a public road. 5.The applicant asserts that previous decisions of the Court of Appeal and the Supreme Court, held that the issue of the legality of the title fell for determination by the ELC, which subsequently found the title to be null and void. It urges that the appeal which has already been lodged, raises seven arguable grounds. The applicant cites the case of Wambui v Mwangi 3 & Others [2021] KECA 144 KLR for the argument that no court should countenance, or enforce rights founded on fraud, deceitfulness, contrived decree, illegality, nullity, irregularity, un-procedurality, or otherwise a product of a corrupt scheme. 6.The applicant invokes Article 40(6) of the Constitution to urge that enforcement of the decree would amount to sanctioning an illegality. It also relies on the High Court case of Five Forty Aviation Ltd v Richard Oloka [2015] eKLR to submit that no person can claim any right or remedy whatsoever, in an illegal transaction in which it has participated. 7.On the nugatory aspect, the applicant contends that the 1st respondent has failed to demonstrate its ability to refund the decretal sum if paid. The application is urged on grounds of both public interest and the need to preserve the substratum of the appeal. It is averred that unless a stay is granted, the intended appeal will be rendered nugatory as execution is imminent and the decretal sum might not be recoverable from the 1st respondent, in the event that the appeal ultimately succeeds. 8.In Application NO. E577 OF 2025, the applicant, Development Bank of Kenya Limited, has moved the Court also seeking a stay of execution of the impugned orders. The application is predicated on the grounds on the face thereof, the affidavit of Chris Gachiri Waithaka, the Principal Legal Officer of the applicant and submissions filed by the firm of Gikera & Vadgama Advocates. It contends that the learned Judge erred in permitting the 1st respondent to proceed with execution against it for a sum of Kshs. 69,979,918.37, or any amount up to the limit of Kshs. 70,902,400, secured under Bank Guarantee No. DBK2007/030, notwithstanding that the Court of Appeal, in Civil Appeal No. 149 of 2007, had reduced the award to Kshs. 22,709,800. 9.It is submitted that the execution sanctioned by the High Court exposed the appellant, as guarantor, to liability far in excess of the lawful decretal sum and contrary to the express terms of the guarantee, thereby occasioning grave prejudice and resulting in unjust enrichment of the 1st respondent. That the learned Judge erred in law and fact by holding it liable under the guarantee, notwithstanding that the guarantee was expressly conditional and was only to crystallize in the event that the High Court judgment remained undisturbed. According to the appellant, the court failed to give effect to the judgment of this Court delivered on 2nd April 2009, which set aside the High Court judgment of 14th December 2006 and substituted it with a reduced award, thereby discharging or substantially reducing the appellant’s liability under the guarantee. 10.The applicant contends that the learned Judge erroneously treated the guarantor as though it were a direct judgment debtor, and misapplied the doctrine of finality of litigation by treating previous rulings as conclusively determinative without addressing the substantive questions relating to the conditional nature of the guarantee and the effect of the appellate reduction of the award. That the Judge failed to properly consider the implications of the ELC judgment delivered on 30th January 2025, which declared the 1st respondent’s title to the suit property null and void while leaving intact the award of mesne profits, thereby sanctioning the enforcement of profits founded on an invalid title. The applicant argues that refusal to grant a stay of execution, despite evidence that execution is being pursued for sums substantially exceeding the lawful decretal amount, would render its intended appeal against the ruling delivered on 18th August 2023, nugatory. 11.The 1st respondent Willesden Investment Ltd filed a replying affidavit sworn by its director Ben Muli, on 14th October 2025, and submissions dated 10th November 2025, through the firm of Oyatta & Associates Advocates, in each of the applications. We considered them all together as the substance is the same. The 1st respondent contends that these applications are merely the latest in a long history of delaying tactics, forum shopping, and resistance to finality of litigation employed by the applicants. That it is one in a series of attempts by the applicant to delay the lawful execution of a judgment that has remained unsatisfied for many years. 12.The respondent submits that at the time of filing the present application, the applicant and the 2nd respondent had already obtained stay orders before the High Court and had filed additional applications seeking similar relief in HCCOMM No. 367 of 2000 and in ELC Petition No. 28 of 2020 consolidated with ELC Case No. 35 of 2010. That is, the applicant has filed multiple concurrent applications for stay of execution before various courts, including the present Court, the High Court, and the ELC, all seeking substantially similar relief. According to the 1st respondent, this multiplicity of proceedings constitutes forum shopping, systemic manipulation of the judicial process, and is an abuse of court process, demonstrating a lack of good faith. 13.The 1st respondent posits that the applicant has failed to disclose that stay orders were already obtained before the High Court, and that there are parallel proceedings concerning the same bank guarantee pending before this Court, in Civil Application No. NAI 322 of 2006, thereby demonstrating a lack of good faith. It asserts that any issues relating to the bank guarantee ought properly, to have been pursued in Civil Application No. NAI 322 of 2006, where the guarantee was directly in issue. 14.The 1st respondent opines that the misconception of this application is evinced by the fact that the bank guarantee constitutes an independent contract between the guarantor and the decree-holder, distinct from the underlying dispute between the parties, and therefore, the stay orders sought cannot properly issue in the manner prayed. 15.On the merits of the application, the 1st respondent submits that the applicant has failed to satisfy the legal threshold for granting of a stay of execution, the Court of Appeal having dismissed Civil Appeal No. 404 of 2018 and the related application for review, thereby removing the basis upon which the release of the bank guarantee had previously been deferred. It is asserted that the bank guarantee was not reviewed, varied, or set aside and notwithstanding the reduction of the principal award, the applicant remained liable up to the guaranteed amount, together with accrued interest, as previously affirmed by the High Court. 16.The respondent avers that the applicant has waited more than a decade after the judgment in Civil Appeal No. 149 of 2007 before challenging the continued efficacy of the guarantee, rendering its present complaint an afterthought and subject of inordinate delay. That the applicant has wrongly relied on alleged revocation of the 1st respondent’s title, whereas prior judicial pronouncements established that the underlying cause of action is founded on trespass and not on validity of the title. 17.The 1st respondent urges that the intended appeal is not arguable because no application was ever made to set aside the conditional stay orders issued in 2007. Further that the court in ELC No. 35 of 2010, did not nullify its title, but affirmed its ownership of the suit property and merely corrected clerical errors in the title documents, following which a new certificate of title was issued. That the ruling of 20th December 2019, merely stayed the release of the bank guarantee pending the determination of specified proceedings and did not extinguish the decree-holder's entitlement thereto, once those proceedings were concluded. 18.The respondent asserts that the appeal will not be rendered nugatory in the absence of a stay since the decree concerns a liquidated monetary sum. That the applicant has failed to demonstrate that the 1st respondent is incapable of making a refund if required. Reliance is placed on the ruling of the Supreme Court delivered on 23rd September 2020, in which the Apex Court found no evidence that the 1st respondent was incapable of repaying the guaranteed amount, and observed that the 1st respondent had been kept out of the fruits of its judgment for many years. 19.In addition, the respondent argues that it is entitled to pursue alternative lawful modes of execution, including attachment, and that any procedural irregularity in the execution process can be remedied without granting a blanket stay. It is urged that: the decree is not statute- barred; the applicant has exhausted its litigation remedies up to the Supreme Court; and, it's reliance on the ELC judgment is inconsistent with the notice of appeal it lodged against the same judgment. The respondent maintains that it possesses sufficient assets, including the suit property, to satisfy any refund obligation should the intended appeal ultimately succeed. 20.In sum, the 1st respondent asserts that the applicant has failed to demonstrate that the appeal is arguable, or that it would be rendered nugatory absent a stay. Therefore, the Court should dismiss the application with costs and allow the decree-holder to enjoy the fruits of its judgment. 21.When the applications came before Court on 11th November 2025, for plenary hearing, representation by learned counsel was as follows: Ms. Opondo for Development Bank of Kenya Limited, Mr. Oyatta for Willesden Investment Limited and Mr. Gichuhi for Kenya Hotel Properties Limited. They each relied on their filed submissions which they highlighted briefly as set out below. 22.Ms. Opondo submitted that the 1st respondent had obtained warrants of attachment and proclaimed the applicant’s goods. Counsel urged that the applicant’s guarantee was extinguished when the Court of Appeal set aside the High Court decision and reduced the amount to Kshs. 22,709,800. However, what has been proclaimed exceeds that amount. 23.Mr. Guchuhi supported the submissions of Ms. Opondo and added that execution was based on bank guarantor who has not been released by the Court of Appeal. That the courts have held that the validity of the title of the 1st respondent must be determined. That after the ELC revoked the title stating that it was a road, the 1st respondent came up with a new title bearing the same L.R. number and there is therefore no title upon which the execution is based. That the Court imposed the burden on the 1st respondent to prove that it could pay and having no title and no asset it cannot so prove. 24.Mr. Oyatta restated that the title was not nullified as Angote J stated that the County had confirmed that the property belonged to the 1st respondent, and it had not encroached on the road. The mistake was found to be in the Map and not on the ground. The court ordered the Map to be rectified and a new title to be issued. The Lands Office has since complied and issued a new title. The Supreme Court dismissed the application for stay as it had no bearing on the title and ordered that the title be determined by the ELC which has since been done. Further, the matter has been in court since 2009 and although the award was reduced to Kshs. 22,709,800 it has since escalated to Ksh150 million because of interest. 25.Before considering the merits of the applications, we find it necessary to address the respondent's objection that the applicants have engaged in a multiplicity of proceedings over the same subject matter. The material placed before us shows that, apart from the present applications, the applicants have pursued several applications before the High Court, the ELC, and this Court, all arising from the same decree, the same execution process, and substantially the same grievances regarding the enforceability of the decree and the bank guarantee. In particular, the 1st respondent pointed to proceedings in HCCOMM No. 367 of 2000, ELC Petition No. 28 of 2020 consolidated with ELC No. 35 of 2010, and Civil Application No. NAI 322 of 2006, all of which seek, directly or indirectly, to impede or halt execution of the decree. That assertion was not controverted by the applicants. 26.While the existence of parallel proceedings does not, of itself, deprive this Court of jurisdiction, courts have consistently frowned upon litigants pursuing substantially similar relief before different fora in the hope of obtaining favourable outcomes. Such conduct undermines the principle of finality of litigation and the orderly administration of justice. In Kenya National Commission on Human Rights V Attorney General; Independent Electoral and Boundaries Commission & 16 Others [2020] KESC 54 (KLR), the Supreme Court emphasized that the purpose of the sub judice doctrine is to prevent multiplicity of suits, avoid abuse of court process, and forestall the risk of courts of competent jurisdiction rendering conflicting decisions over the same subject matter. 27.Similarly, in Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] KLR 229, this Court observed that abuse of process encompasses the improper use of judicial procedures in a manner that interferes with the due administration of justice, including the institution of multiple proceedings over the same dispute. 28.In the present matter, the applicants do not dispute the existence of parallel proceedings touching on the same decree, the same bank guarantee, and substantially the same execution process. Of particular significance is the fact that issues concerning the bank guarantee remain the subject of Civil Application No. NAI 322 of 2006, proceedings in which the applicants have actively participated and which they themselves acknowledge. Equally notable is the existence of applications seeking analogous stay orders before the High Court and the ELC. 29.While every litigant is entitled to pursue lawful remedies, the judicial process cannot be deployed through multiple parallel proceedings in the hope of securing favourable relief from one forum after failing to secure positive relief from another of competent jurisdiction. In our view, the multiplicity of proceedings lends credence to the 1st respondent's contention that the applicants have embarked on several fronts of litigation concerning substantially the same subject matter. Although this finding is not, by itself, dispositive of the applications, it is a relevant consideration in the exercise of this Court's discretionary jurisdiction and militates against the grant of the equitable relief sought. 30.The principles governing the grant of relief under Rule 5(2)(b) of this Court's Rules are now settled. An applicant must demonstrate first, that the intended appeal is arguable. (See Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR and Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2015] eKLR.) In an earlier decision of Kenya Commercial Bank Limited v Nicholas Ombija [2009] eKLR, this Court emphasized that an arguable appeal is one that is not necessarily bound to succeed but one that raises, at least, one bona fide issue worthy of consideration by this Court. It is sufficient if a single bona fide issue is raised, notwithstanding that other issues may not be arguable. 31.The second principle is that unless the order sought is granted the appeal, if successful, would be rendered nugatory. In Multimedia University & Another vs. Professor Gitile N. Naituli (2014) eKLR the Court held that whether or not an appeal will be rendered nugatory, depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. 32.The two limbs are conjunctive and both must be satisfied before the Court can exercise its discretion in favour of an applicant. 33.The applicants contend that their intended appeals are arguable on several grounds. Kenya Hotel Properties Limited argues that execution is unlawful because the bank guarantee was never released by the Court of Appeal and because the decree is founded on a title that was allegedly declared null and void by the ELC in its judgment of 30th January 2025. Development Bank of Kenya Limited, on its part, contends that the learned Judge erred in permitting execution against it, notwithstanding the reduction of the decretal sum by the Court of Appeal and in treating the guarantor as though it were a direct judgment debtor. The applicants further maintain that the learned Judges failed to appreciate the implications of the ELC judgment and the conditional nature of the guarantee. 34.We have anxiously considered those contentions. However, the material before us shows that the decree sought to be executed remains a valid and subsisting decree of a competent court. The applicants have not demonstrated that it has been set aside, varied, or otherwise rendered unenforceable. The 1st respondent has consistently maintained that the guarantee was never discharged and that no application was ever made to set aside or review the conditional stay orders pursuant to which it was issued. The applicants' complaints regarding the guarantee, its enforceability, and the extent of liability thereunder are matters already intertwined with pending proceedings in Civil Application No. NAI 322 of 2006. Likewise, the parties take diametrically opposed positions regarding the effect of the ELC judgment, with the 1st respondent asserting that the judgment affirmed its ownership of the property and merely corrected clerical anomalies in the title documentation. 35.At this interlocutory stage, we are not called upon to resolve those substantive controversies. Suffice it to say that none of the issues raised persuades us that there exists a bona fide arguable appeal warranting the extraordinary intervention of this Court to halt execution of a decree that has remained unsatisfied for many years. The applicants' arguments largely invite this Court to revisit matters that have been the subject of extensive litigation before the High Court, the Environment and Land Court, the Court of Appeal and the Supreme Court. 36.Even assuming that one or more of the issues raised were arguable, the applications would still fail on the nugatory limb. The decree in question is essentially a money decree.The general principle is that an appeal against a money decree is not ordinarily rendered nugatory because the successful party can be compensated through restitution should the appeal ultimately succeed. The applicants have alleged that the 1st respondent is incapable of refunding the decretal sum. However, beyond bare assertions, no cogent evidence was placed before us to demonstrate insolvency or inability to repay. 37.On the contrary, the 1st respondent relied on previous findings of the Supreme Court in SCoK Civil Application No. 27 of 2020, where the Court expressly observed that there was no evidence that the 1st respondent would be unable to repay the guaranteed amount should the guarantee be honoured. The 1st respondent asserts that it has ownership of the suit property and that it possesses sufficient assets to satisfy any restitutionary obligations that may arise. Those assertions were not effectively rebutted. 38.We are equally unable to accept the applicants' contention that public interest demands the grant of a stay. Public interest is not served by perpetuating litigation indefinitely, or by depriving a successful litigant of the fruits of a judgment that has withstood numerous challenges over the years. The record before us reveals a dispute that has traversed multiple courts for well over a decade. Litigation must, at some point, come to an end. In the circumstances, we are not satisfied that the applicants have demonstrated that their intended appeals would be rendered nugatory if execution proceeds. 39.Having failed to satisfy either of the requirements on arguability or the nugatory test, the applicants have not established a basis for the exercise of this Court's discretion under Rule 5(2)(b). The applications are, therefore, devoid of merit and are dismissed with costs to the 1st respondent. 40.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.P. O. KIAGEJUDGE OF APPEAL....................................L. ACHODE*JUDGE OF APPEAL....................................W. KORIRJUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR