Githaiga & another v Karanja; Murigi (Interested Party) (Civil Application E074 of 2023) [2024] KECA 605 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an oral land lease cannot be enforced, refusing to pause an eviction because the appeal had no real chance of success.
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, if granted, the orders sought would render the appeal nugatory
Key legal issues
#Whether the intended appeal was arguable
The appeal was not arguable because the applicants' claim, including to the structures on the land, was based on an oral lease agreement which is unenforceable under section 3(3) of the Law of Contract Act.
The court noted that the applicants' claim rested on an alleged oral renewal of the lease. Section 3(3) of the Law of Contract Act requires a contract for the disposition of an interest in land to be in writing, signed by all parties and witnessed. Nothing signed by the parties was exhibited, so no arguable issue arose from the alleged oral lease, and the arguability threshold was not met.
Whether it was necessary to determine the nugatory limb
Having failed on arguability, the court found it unnecessary to consider whether the appeal would be rendered nugatory.
Rule 5(2)(b) requires an applicant to satisfy both twin principles. Since the applicants failed on the first limb (arguability), the court declined to make definitive findings on the nugatory limb, consistent with the principle that such findings may embarrass the hearing of the main appeal.
Legal principles established
#- A party cannot found a claim on an oral lease of real property, as section 3(3) of the Law of Contract Act mandates that contracts for the disposition of an interest in land be in writing, signed by all parties and attested by a witness.
- An applicant under Rule 5(2)(b) must satisfy both limbs of the twin principles: arguability of the appeal and whether it would be rendered nugatory.
Court orders
#- 1.The notice of motion dated 6th March 2023 seeking stay of execution pending appeal is dismissed
- 2.The applicants to pay the respondent's costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- Jurisdiction invoked
- Sections 3, 3A & 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of the ELC delivered on 9th February 2023 pending determination of the intended appeal
The applicants failed to satisfy the arguability limb of the Rule 5(2)(b) twin principles, as their claim was founded on an oral lease of land which is unenforceable under section 3(3) of the Law of Contract Act
Costs
It is accordingly dismissed with costs. Orders accordingly.
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.
Therefore, a party cannot found a claim on an oral lease of real property in view of the mandatory provisions of section 3(3) of the Law of Contract Act.
In our view there is no arguable issue in regard to the oral lease agreement because the same is not enforceable.
The upshot of the above is that this application must fail. It is accordingly dismissed with costs.
Issues in the judgment
#The lease terms are inconsistently stated: the applicants describe a lease dated 30th June 2015 expiring on 30th August 2021 (renewed to 30th October 2025), while the respondent describes a 5-year term from 1st July 2015 to 30th September 2020; also the respondent is referred to in the singular in places and elsewhere plural ('restraining the respondents').
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.
- LN v JEN (Civil Application E613 of 2024) [2025] KECA 1130 (KLR)[2025] KECA 1130 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Githaiga & another v Karanja; Murigi (Interested Party) (Civil Application E074 of 2023) [2024] KECA 605 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/605/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.