Peter Nga'ng'a Chege v Esther Wangari Ndirangu & 1 other
The bottom line
#Kenya's Court of Appeal refused to pause a land judgment because the winner can refund the money and the boundary can simply be redrawn.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal was arguable because a few issues of law were raised that were not entirely frivolous, despite the majority of the 15 grounds being factual matters impermissible in a second appeal.
The Court noted that most of the 15 grounds of appeal concerned errors of fact, which a second appeal cannot entertain. However, a few issues of law were raised which the Court could not say were entirely frivolous. On the low threshold applicable at the stay stage - whether there is even a single bona fide issue - the applicant passed the arguability test.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would not be rendered nugatory: the boundary can be reset as this Court determines, and the damages award of Kshs 259,840 is refundable, the 2nd respondent being an advocate in private practice able to repay it.
The nugatory consideration protects an appellant's eventual success from being reduced to a paper judgment. Here, if the appeal succeeded, the boundary would be set as this Court determines, so no irreversible harm arises. As to the Kshs 259,840 award, the applicant did not controvert the 2nd respondent's deposition that she, an advocate in private practice, can repay it. The test therefore failed.
Legal principles established
#- An applicant for stay of execution under rule 5(2)(b) must satisfy both the arguability and the nugatory-identity considerations; satisfying only one will not suffice.
- At the stay stage the Court need only find a single bona fide issue requiring consideration; the issue need not ultimately succeed.
- Issues of fact cannot be raised in a second appeal before the Court of Appeal.
Court orders
#- 1.The motion dated 13th June 2024 seeking stay of execution pending appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Nga'ng'a Chege v Esther Wangari Ndirangu & 1 other", Case Analysis (2025). Not stated in the judgment (motion on notice dated 13th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/210/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.