Rachel Wairimu Mukoma v Hannah Wambui Githere & 5 others [2008] KECA 302 (KLR)

The court restated the settled principles governing Rule 5(2)(b) applications. On arguability, the draft memorandum raised wide-ranging issues of fact and law, particularly on trust and adverse possession, so the appeal was not frivolous. On nugatory aspect, the applicant and her sons occupied about 9.2 acres of developed land; if the decree were executed she would surrender most of it, and issues of demarcation and compensation could defeat the appeal. Precedents where the court preserved the status quo over disputed land pending appeal supported the outcome.

The applicant sought both stay and an injunction. The court held the injunction sought was misconceived because respondents could not be prevented from executing a lawful judgment unless and until that execution was stayed. Once execution was stayed, the injunction was unnecessary; the court preserved the status quo by allowing the applicant and the 1st respondent to continue occupying the portions they currently occupy pending the appeal.

Relying on Mukoma vs. Abuoga and Malcom Bell vs. Hon. Daniel Toroitich arap Moi, the court noted it had previously preserved the status quo over disputed land pending appeal. The suit land was developed with tea bushes and homesteads; the judgment was silent on how the 7.33 acres awarded to respondents would be excised, making demarcation a potential source of further dispute, so preservation of the status quo was necessary to prevent the appeal from being rendered nugatory.