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Court of AppealAllowedNot stated in the judgment

Nkabo v M’nyiruu (Civil Application E034 of 2024) [2025] KECA 956 (KLR)

Court of Appeal of Kenya
9 May 2025
1,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal paused enforcement of a land judgment, because the landowner showed the appeal raised real issues and losing the land could not be undone.

What this practically means

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Executive summary

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This was a single-judge-panel ruling (Kantai, Lesiit and Ali-Aroni, JJA) of the Court of Appeal at Nyeri on a notice of motion dated 12th April 2024 seeking a stay of execution under section 3A(1) & (2) of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, pending an intended appeal against a judgment of Nzili, J. of the Environment and Land Court delivered on 20th March 2024. The trial court had cancelled the applicant's proprietorship of the original title Abothuguchi/Katheri/969 (described as non-existent) and its subdivisions, and vested the property in the respondent following a claim of adverse possession. The applicant argued the trial court erred in cancelling a non-existent title, in granting adverse possession relief on that basis, and in ordering eviction from two subdivisions over which no claim had been made. The respondent opposed, contending the applicant had subdivided in disregard of a status quo order issued by Mbugua, J. on 30th September 2019, and that she had lived on and improved the land since 1975. Applying the twin rule 5(2)(b) principles as delineated in Trust Bank Limited v Investech Bank Limited, the court found the draft memorandum raised arguable points not idle, and that the nugatory limb was satisfied because the respondent did not controvert the claim that she could not compensate the applicant should the appeal succeed. The application was allowed, with costs to abide the outcome of the appeal. The decision below was not disturbed at this interlocutory stage.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has demonstrated an arguable appeal
  2. 2.Whether the intended appeal will be rendered nugatory if execution of the decree is not stayed

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The draft memorandum of appeal raised arguable points, including whether a trial court could cancel a non-existent title and grant adverse possession orders over undeclared subdivisions, which deserved ventilation on appeal.

Reasoning

The court examined the draft memorandum of appeal annexed to the application. It identified several arguable points: whether the trial court could order cancellation of a non-existing title without basis; whether an adverse possession order could arise in such circumstances; and whether eviction was proper over parcels never claimed. The court found these were not idle points and should be ventilated on appeal.

p. 3
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

The nugatory limb was satisfied because the property could be alienated or encumbered, and the respondent did not controvert the claim that she lacked means to compensate the applicant.

Reasoning

The applicant argued the respondent had no known income or assets and might dispose of or encumber the property. The respondent asserted she had lived on and improved the land since 1975 but was silent on her ability to compensate. Given both parties claimed possession and the compensation claim went uncontroverted, the court held both limbs demonstrated and allowed the application.

p. 3

Legal principles established

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  • To succeed on a rule 5(2)(b) application, an applicant must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay.
  • Where a respondent does not controvert an assertion that they lack means to compensate the applicant should the appeal succeed, the nugatory limb may be taken as satisfied.

Court orders

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  1. 1.Stay of execution of the judgment of Nzili, J. delivered on 20th March 2024 granted under rule 5(2)(b) pending appeal
  2. 2.Costs to abide by the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
Environment and Land Court
Not stated in the judgment
Jurisdiction invoked
Section 3A(1) & (2) of the Appellate Jurisdiction Act and rules 5(2)(b), 41 and 47 of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The jurisdiction of the Court under rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay of the appeal or intended appeal, if successful will be rendered nugatory.
p. 2Jurisdiction and twin principles under rule 5(2)(b)
The draft memorandum of appeal annexed to the application shows that the applicant has raised several arguable points. We do not find them idle; they deserve to be ventilated on appeal.
p. 3Arguability threshold
Since both claim to be in possession and the respondent did not controvert that she cannot compensate likely loss in the event of a successful appeal, we find that the applicant has demonstrated the two necessary limbs. We allow the application.
p. 3Nugatory limb and disposition
Costs will abide by the outcome of the appeal.
p. 3Costs order (final order)

Issues in the judgment

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minor

The judgment does not state the case number, the parties' names, or the trial court case details; the applicant's intended appeal and the underlying ELC case cannot be identified from the text.

minor

The final orders are not reproduced as a numbered disposition; the disposal is effected within the body of the ruling ('We allow the application') without expressly stating the terms of the stay.

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, "Nkabo v M’nyiruu (Civil Application E034 of 2024) [2025] KECA 956 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/956/eng@2025-05-09

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