Chepkonga v Kuikui & 2 others (Civil Application E061 of 2023) [2024] KECA 631 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt land transfers already in progress, ruling that seeking a stay after execution is advanced is too little, too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal was arguable, raising questions on adverse possession, limitation of time and existence of a trust.
The Court stressed that at the stay stage the appeal is not for determination; the applicant need only show that the grounds deserve to be argued fully. A single arguable point suffices. The memorandum of appeal raised the proper application of adverse possession, whether the claim was time-barred, and whether sufficient evidence established a trust in favour of the respondents, satisfying the first limb.
Whether the appeal would be rendered nugatory if stay is declined
The nugatory limb was not satisfied because execution was already at an advanced stage and any loss could be compensated by damages.
The 1st respondent had exhibited evidence that subdivision, survey and transfer of the suit land had been set in motion in fulfilment of the decree. Relying on Supreme Court and Court of Appeal authority, the Court held that staying such a process would be an order granted in vain; also, the process could be undone if the appeal succeeded and any loss was compensable by damages.
Costs of the application
Costs should follow the event, but since an appeal is already filed, the costs of the application were ordered to abide the outcome of the appeal.
The general rule is that costs follow the event, subject to the court's discretion to order otherwise for good reason. Because the applicant had already filed the appeal, the Court considered it appropriate that the costs of the application await the outcome of the appeal rather than be awarded immediately.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; a single arguable issue suffices for the first limb.
- Where execution of a decree has been set in motion and is at an advanced stage, an order of stay should ordinarily not issue as it would amount to exercising the authority of the Court in vain.
Court orders
#- 1.The application dated 17th November 2023 is dismissed
- 2.The costs of the application shall abide the outcome of the pending appeal
- On appeal from
- Environment and Land Court at Eldoret
- ELC Case No. 173 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyangweso v Ong’eta & 2 others (Environment and Land Appeal E068 of 2025) [2026] KEELC 2528 (KLR)[2026] KEELC 2528 (KLR)30 Apr 2026applied
- Absa Bank Kenya Plc v Mwangi (Civil Appeal (Application) E207 of 2024) [2025] KECA 809 (KLR)[2025] KECA 809 (KLR)9 May 2025
Cite this brief
#Cite this brief
Caselaw, "Chepkonga v Kuikui & 2 others (Civil Application E061 of 2023) [2024] KECA 631 (KLR)", Case Analysis (2024). Eldoret CACA No. E022 of 2023 (application dated 17th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/631/eng@2024-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.