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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment· [2025] KECA 189 (KLR)

Ramji Meghji Gudka Limited v Shadrack Openda & 2 others

Court of Appeal
7 February 2025
2,004 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal protected a Kisii landowner's title from being cancelled until his full appeal is heard, showing courts will preserve property pending appeal.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJ.A) on a Notice of Motion dated 15th December 2023 brought under Rule 5(2)(b) of the Court of Appeal Rules 2010 by Ashwin Ramji Gudka, seeking stay of execution of the judgment of the Environment & Land Court at Kisii (Munyao, J.) dated 28th November 2023. That judgment had dismissed the applicant's suit claiming to be the bona fide registered owner of LR No. Kisii Municipality/BlockIII/35, allowed the 3rd respondent's counterclaim, and ordered the Land Registrar Kisii County to nullify the applicant's title and maintain the property as public land. The 3rd respondent, Kisii County, opposed, arguing the plot fell on a public road, the applicant was not in occupation, and stay would serve no purpose. Applying the twin Rule 5(2)(b) tests, the court found a single bona fide arguable ground - whether the suit property was public land - sufficed, and that the appeal would be rendered nugatory given the applicant's development on the land and the speed at which its character was being altered. The court held the applicant satisfied the Rule 5(2)(b) requirements, allowed the motion to preserve the status quo pending the intended appeal, and ordered costs in the cause. This is an interlocutory decision; the decision below was not disturbed on the merits.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was arguable, inter alia on whether the trial court erred in finding the suit property was public land.

Reasoning

The court applied the settled test that an arguable appeal need not succeed but must not be idle or frivolous; a single bona fide arguable ground suffices. It identified the question whether the land was public land as arguable without making definitive findings lest it embarrass the bench hearing the main appeal.

p. 4
02

Whether the appeal would be rendered nugatory if stay is denied

Holding

The appeal would be rendered nugatory; the status quo was to be preserved by injunction pending the appeal.

Reasoning

The applicant's title had been nullified and the property declared public land, yet the applicant had made development on it. The rapid alteration of the property's character (conversion to a carwash) lent credit to the applicant's fears, so the land should be protected pending full determination.

p. 5

Legal principles established

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  • Rule 5(2)(b) applications are a preservation tool; the twin tests are an arguable appeal and that the appeal would be rendered nugatory absent the orders.
  • A single bona fide arguable ground suffices, and an arguable appeal need not necessarily succeed.
  • In assessing nugatory-ness the court must weigh the conflicting claims and hardships of both sides.

Court orders

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  1. 1.Stay of execution of the judgment of the Environment & Land Court at Kisii dated 28th November 2023, including the order nullifying the title to LR No. Kisii Municipality/BlockIII/35, granted pending the hearing and determination of the intended appeal
  2. 2.Costs shall be in the cause
On appeal from
Environment & Land Court at Kisii
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules 2010, derived from Article 164(3) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ramji Meghji Gudka Limited v Shadrack Openda & 2 others", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/189/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.