https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1281

Red Kaka Ltd v Vivo Energy Kenya Ltd (Formerly Known as Kenya Shell Limited) & 3 others (Civil Application E482 of 2025) [2026] KECA 1281 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1281 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E482 of 2025 P Nyamweya, SG Kairu & AO Muchelule, JJA July 3, 2026 Between Red Kaka Limited Applicant and Vivo Energy Kenya Limited (Formerly Known as Kenya Shell Limited) 1st Respondent Ayan Enterprises Limited 2nd Respondent County Government of Nairobi 3rd Respondent Registrar of Titles 4th Respondent (An application for an injunction pending the filing and determination of an intended appeal against the Judgment and Decree of the Environment and Land Court at Nairobi (S. Okong’o J.) dated 24th June 2025 in ELC. No E766 of 2025) Ruling 1.We are called to determine if the application before us meets the requirements for an order for stay of execution of a judgment pending appeal or of an injunction pending appeal. The twin perquisites in this regard are firstly, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the intended appeal, if successful, will be rendered nugatory. These requirements were amplified by this Court in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others [2013] eKLR. 2.The applicant herein, Red Kaka Limited, seeks such an injunction and stay of execution in a Notice of Motion it has filed in this Court dated 5th August 2025. Specifically, that this Court grants an injunction pending the hearing and determination of its intended appeal restraining the respondents herein from interfering with the applicant’s occupation, ownership, use and enjoyment of all that property known as LR. No. 209/405/8, or the portions intended to be subdivided therefrom being LR. No. 209/405/10 and LR. No. 209/405/11 (hereinafter “the suit property”); and a stay of execution of the judgment delivered on 25th June 2025 by the Environment and Land Court (S. Okong’o J.- as he then was) in ELC Civil Case No. 766 of 2015. The application is supported by an affidavit sworn on 5th August 2015 by Peter Kamau Nyutu, the applicant’s managing director and written submissions dated 28th October 2025 filed by Gachie Mwanza & Advocates, the applicant’s advocates on record. 3.The applicant detailed the events leading to the application it has filed in this Court. In summary, the impugned judgment delivered on 25th June 2025 allowed the claim by Vivo Energy Kenya Limited, the 1st respondent herein, and issued declaratory orders that the 1st respondent was the owner of the suit property, directed the cancellation of the applicant's Certificate of Title with respect to the said property, and the reconstruction and amendment of records by the Director of Surveys. The applicant urges that he has an arguable appeal from the decision, on the grounds that the trial Judge failed to address its claim over the suit property, its proprietary interest and ownership documents; wrongly interpreted that the 1st respondent was the rightful owner of the suit property without taking into consideration the validity of the applicant’s Certificate of Title; and wrongly interpreted the procedural steps towards the issuance and acquisition of the said Certificate of Title. , 4.Accordingly, that the applicant is thereby exposed to the risk of losing the suit property notwithstanding that it is still the lawful registered proprietor of the suit property, and will suffer breach of its guarded constitutional rights to property and to a fair administrative action. In addition, in the event that it succeeds in its appeal, an award of damages will not sufficiently restore the applicant’s loss of massive investment in the suit property, which it has occupied since its allocation in 2007. The applicant in this respect annexed a Notice of Appeal dated 30th June 2025 and a draft memorandum of appeal. 5.These averments were reiterated by the applicant’s advocates, who while citing various judicial authorities on the exercise of this Court’s jurisdiction to grant the orders sought, submitted that arguability of the intended appeal arise from the holding that the applicant’s title to the suit property was obtained through fraud even though the threshold for such holding was not met at the trial court. Further, that the nugatory aspect was illustrated by the fact that the applicant has a title and thus a competing interest with respect to the suit property and stands to suffer irreparably if stay is not granted. 6.The 1st respondent and the Registrar of Titles, the 4th respondent herein, opposed the application. The 1st respondent in this respect filed a replying affidavit sworn on 25th September 2025 by Naomi Assumani, its Regional Counsel and Company Secretary, and submissions dated 7th November 2025 filed by Majanja, Luseno & Company its advocates on record; while the 4th respondent filed submissions dated 5th November 2025 by J. Motari Matunda, Deputy Chief State Counsel at the Attorney General’s office. 7.The 1st respondent’s position was that the applicant’s alleged interest in the suit property was anchored on a forged and fraudulent letter of allotment whose alleged issuer, the 3rd respondent herein, had denied authoring or ever owning the suit property, and the 4th Respondent also confirmed during trial that the suit property was owned by the 1st respondent. Additionally, that the applicant’s intended appeal would not be rendered nugatory as the 1st respondent is the registered owner of the suit property and continued to have occupation and user thereof, and there was an unreasonable and unexplained delay in moving the Court. The 1st respondent attached photographs evidencing the investments and licensed business being conducted on the suit property and submitted that the applicant did not have possession of the suit property and had not placed any evidence before the trial Court to support the allegation that they had made a massive investment in the suit property. Lastly, that no damages were sought in the defence filed by the applicant, and it only sought dismissal of the 1st respondent’s case with costs. 8.The 4th respondent on his part submitted that the applicant’s appeal was not arguable as the applicant’s title was declared a nullity and there was a finding that the suit property did not belong to the applicant, nor would its appeal be rendered nugatory as it never owned the suit property and would not suffer any prejudice. The 4th respondent cited various judicial authorities on the requirements for stay in this regard. 9.We heard the application on 10th November 2025 through this Court’s virtual platform, learned counsel Mr. Gachie Mwanza appeared for the applicant, learned counsel Mr. Steve Luseno appeared for the 1st respondent, and learned counsel Mr. Motari appeared for the 4th respondent. There was no appearance for the 2nd and 3rd respondents, and Mr. Mwanza indicated that he had withdrawn the application as against the said respondent since they did not participate in the proceedings in the trial Court, and he had accordingly not served them with the application or hearing notice. 10.We have considered the arguments made by the applicant and the 1 st and 4th respondents. On the first requirement on arguability, the law is settled that an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona fide issue that deserves full consideration on appeal. The applicant’s contention that there was no legal basis for the finding by the trial Court that it acquired its title by fraud is in our view, not a frivolous ground, and we accordingly find that the applicant has demonstrated that the intended appeal is arguable. Turning to the nugatory aspect, this Court stated in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others (supra) that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible, or if it i s not reversible, whether damages will reasonably compensate the party aggrieved. 11.The applicant’s contention is that it has a competing title and will suffer irreparably if it loses the suit property. However, there is no indication or evidence that the 1st respondent is in the process of alienating the suit property, nor has the applicant averred nor demonstrated that the 1st respondent is unable to compensate it in the event that its intended appeal succeeds. Land is a commodity that can be valued and compensated in monetary terms, and we are therefore not satisfied that the applicant’s appeal will be rendered nugatory in the event judgment is given in its favour. 12.Consequently, although its appeal is arguable, the applicant has not established that it will be rendered nugatory in the event the injunction or stay orders that it seeks are not granted. The applicant was required to satisfy both limbs and has not, and the Notice of Motion dated 5th August 2025 is accordingly dismissed with costs to the 1st and 4th respondents. 13.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.S. GATEMBU KAIRU, C.Arb, FCIArb.……………..……………….JUDGE OF APPEALP. NYAMWEYA…………………………….JUDGE OF APPEALA. MUCHELULEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR