Njiru & another v Kyambi (Suing as the Administrator and Legal Representative of the Estate of the Late Mueke Kyambi alias Lydiah Mueke Kiambi (Deceased)) & 5 others
The bottom line
#Kenya's Court of Appeal stopped an eviction, ruling that a school on the disputed land could not be compensated with money if the appeal later succeeded.
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 an arguable appeal under the first limb of Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory unless stay of execution is granted under the second limb of Rule 5(2)(b)
Key legal issues
#Arguability of the intended appeal
The applicants had an arguable appeal on the bona fide purchaser and fraud grounds.
The court examined the memorandum of appeal and found that the grounds on whether the applicants were bona fide purchasers for value without notice and whether fraud was proved against them were not frivolous and deserved full consideration. The court deliberately refrained from making definitive findings to avoid embarrassing the bench ultimately seized of the appeal.
Whether the appeal would be rendered nugatory
Eviction of the applicants, in possession since 2008 with a school of over 400 pupils, could not be compensated by damages, satisfying the nugatory limb.
The 1st respondent had never been in occupation of the suit property, while the applicants had been in possession since August 2008, a fact not controverted, and had built a school with over 400 pupils. Eviction would have serious ramifications on the learners and the loss could not be adequately compensated by damages.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory-ness limbs before stay can be granted.
- An arguable appeal need not necessarily succeed; it suffices that it is not frivolous.
- An appeal may be rendered nugatory where what is sought to be stayed is irreversible and not compensable by damages.
Court orders
#- 1.Stay of execution of the judgment and decree delivered by Mogeni, J in Nairobi ELC Suit No. E411 of 2021 on 26th October 2023, pending the hearing and determination of the appeal
- 2.Costs of the motion 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 & Land Court at Nairobi
- Nairobi ELC Case No. E411 of 2021
- Jurisdiction invoked
- Sections 3 & 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules 2022
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.
Accordingly, and the applicants having satised both limbs that an applicant has to satisfy in an application of this nature, the applicants motion dated 15th April 2024, is merited and we accordingly allow the same and stay the execution of the judgment and decree delivered by Mogeni, J in Nairobi ELC suit No. E411 of 2021, on 26th October 2023, pending the hearing and determination of the appeal herein.
The costs of this motion shall abide the outcome of the intended appeal.
On whether the appeal is arguable, it is sucient if a single bona de arguable ground of appeal is raised.
In considering an application brought under Rule 5(2) (b), the Court must not make denitive or nal ndings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.
Issues in the judgment
#Duplicate paragraph numbering: paragraph 27 appears twice, once for the stay order and once for the costs order.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiru & another v Kyambi (Suing as the Administrator and Legal Representative of the Estate of the Late Mueke Kyambi alias Lydiah Mueke Kiambi (Deceased)) & 5 others", Case Analysis (2024). Civil Application E268 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1949/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.