Mulama & 3 others v Viragi (Civil Application E165 of 2024) [2025] KECA 647 (KLR)
The bottom line
#The Court of Appeal froze all dealings with the disputed land pending appeal, but confirmed that a court order dismissing a case cannot itself be stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether an order dismissing a suit can be stayed
A negative dismissal order is not capable of execution and cannot be stayed.
The court, following George Ole Sangui v. Kedong Ranch Limited and Western College of Arts and Applied Sciences v. Oranga, held that a dismissal order neither requires a party to do nor refrain from doing anything, confers no relief, and is therefore not enforceable or executable. Stay of such an order cannot be granted, though an injunction may still issue to preserve the substratum of the appeal.
Whether the intended appeal is arguable
The appeal is arguable on the single issue of acquisition of prescriptive rights by adverse possession despite admitted title in the respondent.
The applicants admitted the respondent held title but contended the respondent's entitlement had been extinguished and they had acquired prescriptive rights, which would defeat indefeasibility of title. The court held that one bona fide arguable issue suffices and could not fault the contention on extinction of rights and acquisition of prescriptive rights.
Whether the appeal would be rendered nugatory without preservation orders
Yes; without preservatory orders the respondent could deal adversely with the land to the applicants' prejudice, rendering the appeal nugatory.
The applicants' occupation was uncontested; the dispute was whether they had acquired prescriptive rights or were licensees. If the respondent sold or dealt with the land pending appeal, the appeal would be rendered nugatory. Weighing the hardships of both sides as required by Reliance Bank v Norlake and African Safari Club, the court found the applicants had satisfied both limbs and granted an injunction.
Legal principles established
#- A negative order dismissing a suit is incapable of being stayed under Rule 5(2)(b).
- Rule 5(2)(b) applications require satisfaction of twin principles: an arguable appeal and that the appeal will be rendered nugatory absent preservation orders.
- The same principles applicable to stay applications under Rule 5(2)(b) equally apply to injunction applications under that rule.
- An arguable appeal need not be one that will succeed; a single bona fide arguable ground suffices.
Court orders
#- 1.An interim order of injunction restraining the respondents from in any way dealing with the suit property Kakamega/Bugonda/2163 pending hearing and determination of the appeal
- 2.Costs to abide the outcome of the appeal
- On appeal from
- Environment and Land Court, Kisumu
- Kisumu ELC No. 22 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010, derived from Article 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Oduor v Meritei & 2 others (Civil Application E695 of 2025) [2026] KECA 845 (KLR)[2026] KECA 845 (KLR)30 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Mulama & 3 others v Viragi (Civil Application E165 of 2024) [2025] KECA 647 (KLR)", Case Analysis (2025). Kisumu Civil Application (rule 5(2)(b)) arising from Kisumu ELC No. 22 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/647/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.