Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of motion dated 4th June 2024 in the intended appeal from the judgment of K. Bor, J.

Wachira v M’Twaruchiu & another (Civil Application E049 of 2024) [2025] KECA 1072 (KLR)

Court of Appeal of Kenya
5 June 2025
1,581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal froze the situation on disputed Laikipia land, ordering everyone to keep things as they are until the appeal is heard.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nyeri (W. Karanja, J. Lesiit and Ali-Aroni, JJ of Appeal) on a notice of motion dated 4th June 2024 brought under rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stay of execution of a judgment delivered by K. Bor, J. on 30th November 2023, or in the alternative, an order maintaining status quo over LR Laikipia Daiga Umande Block 6/396, 397, 398 and 399 pending the hearing of an intended appeal. The trial court had directed a joint survey of the suit land, its resurvey and sharing between the applicant and the 1st respondent in fixed ratios, cancellation of existing titles and issuance of new titles. The applicant claimed to have purchased the land in 1984 from four members of the 2nd respondent, whose directors he alleged fraudulently subdivided and transferred his parcel to the 1st respondent. The 1st respondent opposed the application; the 2nd respondent conceded it. Applying the settled twin principles from Gatirau Peter Munya v Dickson Mwenda Kithinji and Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the appeal arguable given the purchase claim and the 2nd respondent's concession, and held that the resurvey and re-registration orders, if executed, would render a successful appeal nugatory. The Court eschewed definitive findings lest it embarrass the bench seized of the substantive appeal. It granted the alternative prayer: parties to maintain status quo as to registration, user and occupation of the suit land pending the appeal, with costs of the application in the appeal. The application thus partially succeeded.

Questions the Court framed

#

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

  1. 1.Whether the intended appeal is arguable and not frivolous
  2. 2.Whether, unless the orders of stay or status quo are granted, the appeal, were it to eventually succeed, would be rendered nugatory

Key legal issues

#
01

Arguability of the intended appeal

Holding

The appeal is arguable: the applicant claims to have purchased the suit land in 1984 from members of the 2nd respondent, who conceded the application; the claim is therefore not frivolous and deserves ventilation on appeal.

Reasoning

The Court confined itself to the twin rule 5(2)(b) parameters, eschewing definitive findings. The applicant claimed purchase of the portions in 1984 from four members of the 2nd respondent. The 2nd respondent conceded the application, and in view of that concession the Court did not think the claim frivolous. Bearing in mind that an arguable appeal need not succeed, the applicant satisfied the arguability limb.

p. 3
02

Whether the appeal would be rendered nugatory absent the orders sought

Holding

Yes: the trial court's orders for resurvey and re-registration would change the physical outlook and ownership of the suit property, making resurveying an exercise in futility should the appeal succeed; status quo orders prejudice no one.

Reasoning

The trial court directed a survey, sharing of the aggregate land between the parties in fixed ratios, cancellation of titles and issuance of new titles. If executed before the appeal is heard and the appeal succeeds, the exercise would have been futile. Both limbs of the rule 5(2)(b) test must be proved. Since the parties were agreeable to status quo, granting it would not prejudice any party.

p. 3

Legal principles established

#
  • To obtain stay of execution, injunction or stay of further proceedings under rule 5(2)(b) of the Court of Appeal Rules, an applicant must establish both that the appeal is arguable and that, if successful, it would be rendered nugatory absent the orders sought.
  • An applicant under rule 5(2)(b) must prove both limbs - arguability and nugatory aspect - and an arguable appeal is not necessarily one that will succeed.

Court orders

#
  1. 1.Parties are ordered to maintain status quo prevailing as to the registration, user and occupation of Laikipia Daiga Umande Block 6/396, 397, 398 and 399, pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to be in the appeal

The bench

#

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

majority
majority
majority
On appeal from
Environment and Land Court / High Court (trial court)
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

#

Order for stay of execution of the judgment and decree of the trial court as framed in the main prayer

The Court instead granted the alternative prayer for maintenance of status quo, which both parties were agreeable to and which would not prejudice any party

p. 3

Costs

Costs of the application to be in the 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.

Accordingly, the notice of motion dated 4th June 2024 succeeds to the extent that parties are ordered to maintain status quo prevailing as to the registration, user and occupation of Laikipia Daiga Umande Block 6/396,397,398 and 399, pending the hearing and determination of the intended appeal.
p. 3Final orders - status quo granted
We order that costs of the application be in the appeal.
p. 4Costs
the appeal or intended appeal is arguable and not frivolous; and that unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory
p. 3Rule 5(2)(b) twin principles

Issues in the judgment

#
minor

The judgment refers to the movant inconsistently as 'the applicant' and 'the appellant', and refers to the 1st respondent as both 'she' and 'he' within the same paragraphs

minor

The notice of motion is dated 4th June 2024, seeking to stay a judgment delivered on 30th November 2023, and the judgment does not explain the delay; also, the intended appeal number and the trial court case number are not stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wachira v M’Twaruchiu & another (Civil Application E049 of 2024) [2025] KECA 1072 (KLR)", Case Analysis (2025). Notice of motion dated 4th June 2024 in the intended appeal from the judgment of K. Bor, J.. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1072/eng@2025-06-05

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