Martha Thairora Gikundi v Elizabeth Kananu & another [2020] KECA 101 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction because letting it happen would have made the landowner's appeal pointless, even if she eventually won.
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 intended appeal is arguable
- 2.Whether, absent a stay of execution, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The applicant satisfied the first twin principle of an arguable appeal.
The Court considered the intended Memorandum of Appeal annexed to the supporting affidavit against the Rule 5(2)(b) principles as summarised in Stanley Kang’ethe v Tony Ketter & Others, which it fully adopted. It found that the applicant had demonstrated the existence of an arguable appeal, stressing that arguability is assessed irrespective of the appeal's ultimate success or failure.
Nugatory-value of the appeal absent stay
The threatened eviction of the applicant from the suit property would render the appeal nugatory or cause irreparable prejudice.
Applying the second prerequisite, the Court reasoned that if the threatened eviction were executed, the effects might be irreversible; alternatively, even if reversible, restoration of the status quo ante would involve costs and cause great inconvenience and high prejudice to the rival parties. This satisfied the nugatory test, warranting the stay pending the intended appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay; an arguable appeal need not ultimately succeed.
- A stay may be granted where execution would cause irreversible or costly-to-reverse prejudice, amounting to rendering the appeal nugatory.
Court orders
#- 1.Stay of execution against the judgment/decree of the superior court dated 8th April 2019 pending the hearing and determination of the intended appeal (Prayer 1 of the Notice of Motion allowed)
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Meru ELC No. 307 of 2013
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act, Cap 9 and Rule 5(2)(b) of the Court of Appeal Rules (2010)
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.
we are satisfied that the applicant has satisfied the first of the twin principles that guide the Court in the exercise of its mandate under the said rule, namely, demonstration of existence of an arguable appeal irrespective of its ultimate success and/or otherwise
if the threatened eviction of the applicant from the suit property is executed, it may be irreversible
Prayer 1 of the Notice of Motion dated 31st August 2019 is allowed.
Costs of the application to abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masase & another v Speaker, County Assembly of Kisii & 6 others (Civil Application E061 of 2025) [2026] KECA 1414 (KLR)[2026] KECA 1414 (KLR)10 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Martha Thairora Gikundi v Elizabeth Kananu & another [2020] KECA 101 (KLR)", Case Analysis (2020). Nyeri Civil Application No. 148 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/101/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.