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Court of AppealDismissedNot stated in the judgment (Motion under rule 5(2)(b) Court of Appeal Rules, arising from Nanyuki ELC No. 6 of 2023)· [2025] KECA 1227 (KLR)

John Maina Nderitu v Muhotetu Farmers Company Ltd & 1 other

Court of Appeal of Kenya
4 July 2025
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to halt enforcement of a land judgment because the losing party could not show his appeal would be pointless without a stay.

What this practically means

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Executive summary

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By Motion under rule 5(2)(b) of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act, John Maina Nderitu, the unsuccessful 1st defendant before Bor, J. in Nanyuki ELC No. 6 of 2023, sought a stay of execution of the judgment of 14th November 2024 pending an intended appeal. That judgment had dismissed his counter-claim, declared the 2nd respondent the absolute registered proprietor of the suit property, ordered him to vacate within 45 days, issued a permanent injunction against him, and awarded mesne profits of Kshs.16,000/= per month from 1st November 2006 plus costs. The applicant argued that the Judge misapprehended proprietary estoppel and lis pendens, and that he had developed the land at a cost of Kshs.37,000,000 with the 1st respondent's authority. The respondents replied that the 2nd respondent had purchased the property at a public auction, obtained a Certificate of Lease on 4th March 2014, taken possession, and already occupied the land, leaving nothing to stay or preserve. Applying the well-known rule 5(2)(b) principles summarised in Stanley Kangethe Kinyanjui v Tony Ketter & Others, the Court accepted that the intended appeal raised arguable issues, including lis pendens, proprietary estoppel and the 2nd respondent's knowledge of the applicant's claim when purchasing. However, the applicant failed the second limb: he could not show that the appeal would be rendered nugatory where he had already been removed from the property, which the 2nd respondent purchased and has occupied since 2014. The Court dismissed the Motion with costs to the respondents. No decision below was disturbed; this was an interlocutory application.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Yes - the Court found multiple arguable issues, including lis pendens, proprietary estoppel and the 2nd respondent's knowledge of the applicant's claim at the time of purchase.

Reasoning

The Court identified several matters raised by the applicant that merited full consideration at the hearing of the intended appeal. It reiterated that the arguability threshold is low: an arguable point is not one that must succeed, but one that calls for consideration and determination by the Court. It therefore found the first limb of the rule 5(2)(b) test satisfied.

p. 4
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

No - the nugatory limb failed because the applicant had already been removed from the suit property, which the 2nd respondent purchased and has occupied since 2014.

Reasoning

The Court noted the unchallenged deposition that the suit property was sold on the open market and transferred to the 2nd respondent on 4th March 2014, who has been in possession for over ten years. In those circumstances the applicant could not show that the appeal would be rendered nugatory absent stay, so neither a stay nor an injunction could issue.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable, that is not frivolous, and in addition that the appeal would be rendered nugatory absent stay.
  • An arguable point on appeal is not one that will necessarily succeed, but one that calls for consideration and determination by the Court.

Court orders

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  1. 1.Dismissal of the applicant's Motion for stay of execution of the judgment of 14th November 2024 pending the intended appeal
  2. 2.Costs of the Motion awarded to the respondents
On appeal from
Environment and Land Court, Nanyuki
ELC No. 6 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act (stay of execution pending intended appeal)

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, "John Maina Nderitu v Muhotetu Farmers Company Ltd & 1 other", Case Analysis (2025). Not stated in the judgment (Motion under rule 5(2)(b) Court of Appeal Rules, arising from Nanyuki ELC No. 6 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1227/eng@2025-07-04

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