Makokha v County Government of Bungoma & 4 others (Civil Application E198 of 2023) [2024] KECA 211 (KLR)
The bottom line
#Kenya's Court of Appeal paused land case proceedings because the dispute was already decided in the estate's favour, keeping that judgment from being undone while the appeal is heard.
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 Applicants have satisfied the requirements necessary for granting an order for stay of proceedings, namely that the appeal is arguable and that it will be rendered nugatory if stay is not granted
Key legal issues
#Whether the appeal is arguable
Yes. The question whether it was proper to set aside a judgment entered following the opposing party's failure to file written submissions is an arguable point worthy of full argument.
Relying on Wasike v Swala, Transouth Conveyors and KCB v Nicholas Ombija, the Court held that an arguable appeal need not succeed, nor raise a multiplicity of issues; one serious issue of law suffices. The memorandum of appeal raised the single issue of inordinate delay by the 1st respondent in seeking to set aside the ex-parte judgment, which the Court found arguable.
Whether the appeal would be rendered nugatory if stay is not granted
Yes, on the narrow circumstances. The suit before the ELC had been concluded in the applicant's favour, and continuing proceedings would render nugatory the very question on appeal: whether the concluded proceedings should be re-opened.
While the ordinary rule is that this Court does not stay proceedings of the High Court pending interlocutory appeals, the decision is case-specific. Here, but for the impugned ruling setting aside Olao J's judgment, the matter was concluded; allowing the trial to continue would upset the decision of a court of equal jurisdiction and moot the appeal. Balancing the hardship of the parties per African Safari Club supported a stay.
Legal principles established
#- The twin principles for an order under Rule 5(2)(b) are that the appeal is arguable and would be rendered nugatory if stay is not granted; the same principles apply whether the relief sought is an injunction, stay of execution or stay of proceedings.
- As a general rule, the Court of Appeal does not stay proceedings in the High Court or courts of equal status pending interlocutory appeals; a pending interlocutory appeal does not of itself entitle a party to a stay of proceedings.
- The decision whether to grant a stay of proceedings is made on a case by case basis, and the narrow circumstances of a concluded suit may warrant a stay.
- An arguable appeal is not one that must necessarily succeed, but one that merits consideration by the court; a single arguable issue suffices.
Court orders
#- 1.Stay of any further proceedings in Bungoma ELC Petition E002 of 2021 pending the hearing and determination of the appeal
- 2.The application is allowed
- 3.Costs shall abide by the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (Bungoma)
- Bungoma ELC Petition E002 of 2021
- Jurisdiction invoked
- 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.
the applicants have satisfied the twin principles for grant of an order for stay of proceedings under rule 5(2)(b). Accordingly, the application is allowed. The costs shall abide by the appeal.
Ordinarily, this Court does not stay proceedings of the High Court or equal status courts pending interlocutory appeals.
an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court
In determining whether or not an appeal will be rendered nugatory, a lot depends on whether or not 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.
Issues in the judgment
#Internal date inconsistency: the ruling granting the 1st respondent's application to set aside is said to have been delivered on 12th May 2023 but is elsewhere described as an order dated 12th May 2021.
Internal inconsistency on whether respondents had filed responses: paragraph 5 records that the 1st respondent had not filed responses or submissions, but the later discussion refers to a judgment entered following failure to file written submissions.
Key timeline
#Practical implications
#Frequently asked questions
#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.
- Solomon & 3 others v Mwangaza & another (Civil Application E020 & E021 of 2025 (Consolidated)) [2026] KECA 320 (KLR)[2026] KECA 320 (KLR)27 Feb 2026
- African Marine and General Engineering Company Limited v Philip (Appeal E234 of 2024) [2025] KEELRC 812 (KLR)[2025] KEELRC 812 (KLR)6 Mar 2025applied
- Kenya Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited (Cause E047 of 2023) [2025] KEELRC 339 (KLR)[2025] KEELRC 339 (KLR)6 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Makokha v County Government of Bungoma & 4 others (Civil Application E198 of 2023) [2024] KECA 211 (KLR)", Case Analysis (2024). Kisumu Civil Application (as stated: arising from Bungoma ELC Petition E002 of 2021; see also KSM CA No E196 of 2023 Abdallah Wereh v the same respondents). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/211/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.