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Court of AppealDismissedNotice of Motion dated 26th April 2024 (Malindi)

Mbogoh v Chironda (Civil Application E012 of 2024) [2025] KECA 1098 (KLR)

Court of Appeal
20 June 2025
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal in Malindi refused to pause an ongoing land case because the applicant showed an arguable appeal but no real harm if the case continued.

What this practically means

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Executive summary

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This application, brought under rule 5(2)(b) of the Court of Appeal Rules, 2022, sought a stay of proceedings in Kilifi MCCC No 176 of 2018 pending an intended appeal against the ruling of Makori, J. delivered on 21st February 2024, which had declined the applicant leave to appeal out of time against a trial court ruling of 3rd May 2023 allowing the respondent's application for review. The underlying dispute concerns ownership of Plot No 53, Kijipwa Settlement Scheme, litigated between former spouses, in which the trial magistrate had held the court lacked jurisdiction over matrimonial property. The Court of Appeal framed its task around the twin principles of rule 5(2)(b): arguability and nugatory effect. On the first limb, relying on settled authority, it accepted that a single bona fide arguable ground suffices and found the applicant's draft memorandum raised arguable points. On the second limb, however, the Court found no nugatory effect: the review ruling had granted both parties leave to adduce further evidence on rehearing, so the applicant would have the opportunity to counter the respondent's evidence, and no irreversible prejudice or inadequacy of damages was demonstrated. Because both limbs must be satisfied, the application failed. The Court dismissed the Notice of Motion dated 26th April 2024 with costs to the respondent, leaving the trial proceedings to continue while the intended appeal remains available for hearing on its merits.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court was satisfied the applicant deserved his day in court on the draft memorandum of appeal, without pronouncing on the merits.

Reasoning

The Court reiterated that an arguable appeal need not necessarily succeed; it is one that is not frivolous and deserves consideration. A single bona fide ground suffices. On the draft memorandum and grounds of the Motion, the applicant satisfied the first limb, and the Court declined to say more, leaving merits to the bench hearing the appeal.

p. 4
02

Whether the intended appeal would be rendered nugatory absent a stay of proceedings

Holding

The Court found no nugatory effect: the applicant could counter any additional evidence at the rehearing and suffered no irreversible prejudice if the trial continued.

Reasoning

The Court noted the Magistrate's review ruling granted leave to both parties to adduce further evidence, so the applicant would have the opportunity to respond to the respondent's evidence. Since the applicant could not show irreversible prejudice, and both limbs must be satisfied, the application failed. The nugatory inquiry asks whether the harm would be reversible and whether damages would suffice.

p. 5

Legal principles established

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  • Under rule 5(2)(b) of the Court of Appeal Rules, 2022, the Court may grant only three types of interim relief pending appeal: stay of execution, injunction, or stay of further proceedings, each relating to the decision of the superior court appealed from.
  • An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory limbs; satisfying only one limb does not avail the relief sought.
  • A single bona fide arguable ground of appeal suffices to satisfy the first limb of the rule 5(2)(b) test.

Court orders

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  1. 1.Notice of Motion dated 26th April 2024 dismissed with costs to the respondent
On appeal from
Environment and Land Court, Malindi
Malindi ELRC Misc. Application No E002 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

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, "Mbogoh v Chironda (Civil Application E012 of 2024) [2025] KECA 1098 (KLR)", Case Analysis (2025). Notice of Motion dated 26th April 2024 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1098/eng@2025-06-20

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