Settlement Funds Trustees & 2 others v Mohammed & 5 others; Mohammed (Interested Party) (Civil Application E115 of 2024) [2025] KECA 782 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the eviction of over 1,000 Mwatate residents, ruling their intended appeal was arguable and eviction losses could not be compensated.
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 under the first limb of the twin principles in rule 5(2)(b)
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted under the second limb of the twin principles
Key legal issues
#Whether the intended appeal was arguable
The grounds - that the applicants were condemned unheard without notice, that over 1,000 residents were not joined, and alleged fraudulent acquisition of the suit property - were bona fide arguable points, satisfying the first limb.
The Court examined the grounds discernible from the Motion and supporting affidavit, including lack of notice of proceedings, condemnation unheard, non-joinder of over 1,000 residents facing eviction, and allegations of fraudulent transfer of the suit property. It concluded these were not idle grounds but raised bona fide arguable points deserving consideration, needing only one such point to suffice.
Whether the appeal would be rendered nugatory absent stay
Enforcement of the decree would result in tremendous, uncompensable loss to over 1,000 residents facing eviction, satisfying the nugatory limb.
Considering the circumstances - allegations of fraudulent acquisition, lack of notice, and over 1,000 residents risking eviction and demolition of homes in enforcement of a decree in a suit to which they were not party - the Court found the appeal would be worthless or futile absent stay, and the loss could not be adequately compensated by damages, while respondents would suffer no prejudice.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin conjunctive principles of an arguable appeal and that the appeal would be rendered nugatory absent stay.
- A single arguable point suffices to satisfy the arguability limb; a multiplicity of points need not be shown.
- The purpose of a stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while weighing the respondent's right to the fruits of judgment.
Court orders
#- 1.Stay of execution of the judgment and decree of the Environment and Land Court at Voi (E. K. Wabwoto, J.) dated 18th October 2024 pending appeal
- 2.The applicant to file and serve the record of appeal within forty-five (45) days failing which the stay orders shall automatically lapse
- 3.Costs of the Motion to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Voi
- ELC Case No. 7 of 2024 (formerly Nairobi HCCC No. 1663 of 2000, transferred as Mombasa HCCC No. 40 of 2017)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution pending appeal)
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.
There be stay of execution of the judgment and decree of the Environment and Land Court at Voi (E. K. Wabwoto, J.) dated 18th October 2024 pending appeal;
The applicant do file and serve the record of appeal within forty-five (45) days from the date hereof failing which the stay orders hereby granted shall automatically lapse;
an applicant must demonstrate that they have an arguable appeal; and that the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the impugned decree, order or proceedings is not stayed.
A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the Applicant at the end of the proceedings.
Issues in the judgment
#Typographical errors in the judgment text (e.g. 'bdetermined', 'sufiers', 'sufice', 'efiect'), suggesting transcription imperfections but not affecting substance.
The record before the Court was incomplete - no memorandum of appeal, pleadings, proceedings or replying affidavit were on record, limiting verification of the underlying facts.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Settlement Funds Trustees & 2 others v Mohammed & 5 others; Mohammed (Interested Party) (Civil Application E115 of 2024) [2025] KECA 782 (KLR)", Case Analysis (2025). Notice of Motion dated 23rd October 2024 (Civil Application, Court of Appeal at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/782/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.