Ngetich v Goren & another (Civil Application E021 of 2024) [2025] KECA 565 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land case because the applicant showed no harm that a later appeal could not fix.
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 the appeal would be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Twin test for stay of proceedings under rule 5(2)(b)
The applicant must show, conjunctively, that the appeal is arguable and that it would be rendered nugatory if stay is not granted; failing either limb disposes of the application.
The court restated the settled twin conjunctive principles governing rule 5(2)(b) applications. Although it accepted that the applicant's two issues (jurisdiction and limitation) were arguable, it found the nugatory limb unsatisfied because the trial court's eventual decision would be reversible on appeal, so the application failed.
Whether the appeal would be rendered nugatory without a stay of proceedings
It was not; the applicant's concerns about jurisdiction and limitation could be raised in defence before the trial court and again on appeal, so no irreversible harm was demonstrated.
The court held that the apprehended jurisdictional and limitation issues could be raised in the applicant's defence with evidence at trial, and again on appeal if unsuccessful. Since the trial court's eventual decision would be reversible, the appeal would not be rendered an academic exercise, and it was in the parties' interest for the substantive dispute to proceed.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin conjunctive principles that the appeal is arguable and would be rendered nugatory if stay is not granted.
- An issue need only be arguable, not ultimately successful, to satisfy the first limb; its success is for the bench hearing the appeal.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party.
- Failure to satisfy one of the twin conditions is fatal to a rule 5(2)(b) application.
Court orders
#- 1.The application seeking stay of proceedings in Kapsabet ELC Case No. E001 of 2021 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Kapsabet
- Kapsabet ELC Case No. E001 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in Kapsabet ELC Case No. E001 of 2021 pending the hearing and determination of Eldoret Civil Appeal No. E035 of 2014
The applicant satisfied neither limb of the rule 5(2)(b) twin test; in particular, he failed to demonstrate that the appeal would be rendered nugatory because the issues can be raised before the trial court and on appeal
Costs
It is dismissed with costs to the respondents.
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.
To succeed, an applicant must satisfy the following twin conjunctive principles in an application under rule 5 (2) (b) of this Court's rules: that the appeal is arguable and would be rendered nugatory if stay is not granted.
The test is whether they are arguable, though they may not finally succeed.
In any event, and as pointed out by the respondent, it is in the best interest of the parties to have the substantive dispute proceed to its logical conclusion.
Having established that the applicant has not satisfied one of the conditions precedent, this application is for dismissal. In the circumstances, we find that the application herein lacks merit. It is dismissed with costs to the respondents.
Issues in the judgment
#The judgment states the application was disposed of by written submissions orally highlighted on 12th March 2025, yet the submissions and case digest relied on by the applicant are dated 20th May 2024, which precedes the highlighted date but post-dates the application of 22nd April 2024 - internally consistent but the sequence of dates across paragraphs 5 and 6 is unusual and worth noting.
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.
- Cheruiyot v Maiyo & 2 others (Environment and Land Case E006 of 2025) [2026] KEELC 1624 (KLR)[2026] KEELC 1624 (KLR)18 Mar 2026
- Karanja v Kiragu (Suing on behalf of Jonathan Njuguna Wanjiru, David Chege and Mercy Emily Wanjiru - As Donors) (Civil Appeal (Application) E204 of 2022) [2025] KECA 1198 (KLR)[2025] KECA 1198 (KLR)4 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Ngetich v Goren & another (Civil Application E021 of 2024) [2025] KECA 565 (KLR)", Case Analysis (2025). Eldoret Civil Appeal No. E035 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/565/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.