Kakuzi PLC v Makuyu Club (Suing Through Joel Nyoike, Irungu Ndirangu and S. Kirubi as Trustees of the Club)
The bottom line
#Supreme Court halts eviction of Thika Sports Club pending hearing of land dispute appeal.
What this practically means
#The Kenya Agricultural and Livestock Research Organization (KALRO) appealed to the Supreme Court after losing a case where Thika Sports Club was awarded 70 acres of land through adverse possession. The Supreme Court temporarily stopped the club from taking the land until the appeal is heard. The court found that the appeal raises serious legal issues, and if the land were transferred before the appeal, the case would become meaningless. The club can continue using the property for now.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has laid a sufficient basis to warrant the exercise of this Court’s discretion to grant orders of stay of execution pending the hearing and determination of its appeal
Key legal issues
#Whether the applicant's appeal is arguable
The appeal is arguable because it was certified by the Court of Appeal as raising matters of general public importance, thereby granting the Supreme Court jurisdiction under Article 163(4)(b) of the Constitution.
The Court applied the test from Kenya Hotel Properties Limited, which requires a prima facie assessment of whether the appeal has substance. Since the Court of Appeal had already certified the appeal as raising questions of general public importance, the Supreme Court held that it goes without saying that the appeal is arguable and not frivolous. The Court did not interrogate the merits but merely noted the certification as sufficient to establish arguability at this stage.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would be rendered nugatory because the respondent is taking active steps to execute the decree, and the subject matter is land which, if transferred, could not be easily reversed.
The Court applied the nugatory test from Haki Na Sheria Initiative, focusing on reversibility. The respondent confirmed it was taking steps towards execution, including extracting a decree and filing a bill of costs. The Court found that if execution were concluded before the appeal is heard, the appeal would become an academic exercise. The fact that the respondent remains in occupation and use of the property meant that granting stay would not cause irreparable harm to the respondent.
Whether it is in the public interest to grant the stay
Granting the stay is in the public interest because it preserves the status quo and does not prejudice the respondent, who remains in occupation and use of the property.
The Court considered the impact of the stay order beyond the parties. The applicant claimed the respondent was taking steps to execute, while the respondent submitted it remained in occupation of the suit property containing a golf course, clubhouse, and related amenities. The Court balanced the competing claims and found that preserving the status quo by granting stay was just, and that the respondent would not suffer irreparable damage as it continues to use the property.
Legal principles established
#- For a stay of execution pending appeal, three conditions must be met: arguable appeal, nugatory risk, and public interest.
- An arguable appeal is one that has substance at first glance, not necessarily one that will succeed.
- On the nugatory aspect, the court considers whether the outcome is reversible or if damages can compensate.
- Certification by the Court of Appeal as raising matters of general public importance establishes arguability.
- Land is considered unique and its transfer may render an appeal nugatory if not reversible.
- Granting stay is in public interest if it preserves the status quo and does not cause irreparable harm to the respondent.
Court orders
#- 1.The Notice of Motion dated 12th August, 2025 is hereby allowed.
- 2.Pending the hearing and determination of the appeal, the execution of the decision of the Court of Appeal of 8th November 2024 in Civil Appeal No. 78 of 2020 and the Judgment and Decree of the Thika ELC Case No. 115 of 2017 delivered on 18th October 2019 is hereby stayed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 78 of 2020
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya
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.
This Court established principles for the grant of an order of stay in the case of Gatirau Peter Munya Vs Dickson Mwenda & 2 others, (Application 5 of 2014) [2014] KESC 30 (KLR) where we held that an applicant must satisfy three conditions being that the appeal is arguable and not frivolous; that the appeal would be rendered nugatory if the stay orders are not granted; and that it would be in the public interest to do so.
Arguability of an appeal would entail this Court looking at the record and the Petition of Appeal and determine, without finality but at a prima facie level, whether the appeal has substance and/or is not made of straw.
On the nugatory aspect, the concern is whether what is sought to be stayed if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.
Key timeline
#Practical implications
#Stay applications: three-part test clarified
The Supreme Court reaffirmed the Gatirau Peter Munya test for stay of execution. Practitioners should focus on demonstrating arguability (easier if the appeal is certified as a matter of public importance), nugatory risk (especially for land, which is unique), and public interest. This case shows that certification by the Court of Appeal is strong evidence of arguability, and that active steps toward execution help establish nugatory risk.
Land disputes: execution halted pending appeal
If your business is facing loss of land through an adverse possession judgment, you can seek a stay of execution from the Supreme Court if your appeal raises important legal questions. The court will likely grant a stay if the land is unique and execution would make the appeal pointless. Until the appeal is decided, the other party remains in possession, so no immediate disruption occurs.
Property rights: temporary relief from eviction
Individuals who have lost a land case can ask the Supreme Court to temporarily stop eviction while appealing. The court considers whether the appeal would be useless if the land is taken. If the case is of public importance, the court may grant a stay. Here, Thika Sports Club remains on the land pending the appeal, showing that the court prioritizes preserving the status quo.
Frequently asked questions
#What is the Kenya Agricultural and Livestock Research Organization v. Thika Sports Club case about?+
It is a land dispute in Kenya where Thika Sports Club claimed ownership of 70 acres through adverse possession, having occupied the land since 1934. The Supreme Court temporarily stopped the club from taking possession pending KALRO's appeal.
What does 'stay of execution' mean in a Kenyan land case?+
A stay of execution is a court order that prevents enforcement of a previous judgment until the appeal is heard. In land cases, it stops the winning party from evicting the loser or taking possession while the appeal is pending.
How does the Supreme Court decide whether to grant a stay pending appeal in Kenya?+
The court applies three tests: the appeal must be arguable (not frivolous), the appeal would be rendered nugatory without the stay, and granting the stay must be in the public interest. The court balances these factors, especially for land, which is considered unique.
Can a party remain on land after losing a case if they appeal to the Supreme Court in Kenya?+
Yes, if the Supreme Court grants a stay of execution. The court considers whether the appeal would become meaningless if the land is taken and whether the winning party can be compensated. Here, the club was allowed to stay on the land pending the appeal.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muna & 5 others v Boscardin & 3 others (Environment and Land Case 27 of 2020) [2026] KEELC 3522 (KLR)[2026] KEELC 3522 (KLR)10 Jun 2026applied
- Langton Investments Ltd v Ngumi & 2 others (Environment and Land Appeal E034 of 2026) [2026] KEELC 3363 (KLR)[2026] KEELC 3363 (KLR)4 Jun 2026
- Langton Investments Ltd v Ngumi & 2 others (Environment and Land Appeal E034 of 2026) [2026] KEELC 3363 (KLR)[2026] KEELC 3363 (KLR)4 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Kakuzi PLC v Makuyu Club (Suing Through Joel Nyoike, Irungu Ndirangu and S. Kirubi as Trustees of the Club)", Case Analysis (2026). Petition (Application) E035 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/4/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.