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Court of AppealDismissedNot stated in the judgment

Saggaf v Edarus & 3 others (Civil Application E121 of 2024) [2025] KECA 1396 (KLR)

Court of Appeal
31 July 2025
1,881 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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The Court of Appeal refused to protect a homeowner from eviction pending appeal, holding that money compensation could adequately remedy his loss.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Tuiyott, Laibuta and Ngenye-Macharia, JJAA) on a rule 5(2)(b) application by Mohamed Maula Saggaf seeking injunctions, pending an intended appeal, to restrain the respondents from evicting him from or dealing with Plot Mombasa Block XXVI/5. The applicant's suit, in which he claimed a constructive or implied trust arising from family contributions to the purchase of the property, had been struck out by Naikuni, J. as time-barred in a ruling dated 15th October 2024, time having been reckoned from the 2005 registration of the 2nd and 3rd respondents. The court held that the applicant's contention that time should run from his June 2023 discovery of the alleged fraud was serious enough to make the appeal arguable, satisfying the first conjunctive condition. However, the second limb failed: the applicant's own alternative prayer for payment of the value of the undeveloped portion demonstrated that monetary compensation was an adequate remedy, and he had not shown that the respondents would be unable to repay. The court emphasized that a rule 5(2)(b) injunction is decided on arguability and nugatory-opy considerations, not the Giella v Cassman Brown principles. The application was dismissed with costs. No decision was made on the intended appeal itself.

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 an arguable appeal against the ruling striking out his suit as time-barred
  2. 2.Whether the appeal will be rendered nugatory if the injunctions sought are not granted

Key legal issues

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01

Whether the applicant's intended appeal is arguable

Holding

The appeal is arguable: the contention that time should run from June 2023 when the alleged fraud was discovered rather than from the 2005 registration is serious enough to warrant reflection in a full appeal.

Reasoning

The trial court held the suit time-barred because time ran from 2005 when the 2nd and 3rd respondents were registered as owners. The applicant proposes to argue that time ought to be reckoned from his June 2023 discovery of the alleged fraud. The court does not decide which argument prevails but finds the contention not frivolous and deserving of interrogation at the full appeal.

p. 4
02

Whether the appeal will be rendered nugatory if the injunction is not granted

Holding

The nugatory limb fails because the applicant's own alternative prayer for payment of the value of the undeveloped portion demonstrates that monetary compensation is an adequate remedy, and he has not shown the respondents cannot pay.

Reasoning

Although the applicant claims irreparable harm from loss of his home of 20 years, his alternative prayer is essentially a money decree. Under settled practice, stay against a money decree is granted only where inability to repay or exceptional difficulty of recovery is shown. The applicant neither alleged nor demonstrated that the respondents cannot pay the compensation when called upon, so the appeal would not be rendered nugatory.

p. 4

Legal principles established

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  • A rule 5(2)(b) injunction is granted on the conjunctive conditions of an arguable appeal and an appeal that would be rendered nugatory, not on the Giella v Cassman Brown principles
  • This Court will not grant a stay against a money decree unless the applicant demonstrates the respondent will be unable to repay when required or that recovery will be exceptionally difficult
  • The term 'nugatory' is given its widest meaning and includes a trifling appeal, assessed within the circumstances of each particular case

Court orders

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  1. 1.The Notice of Motion is dismissed with costs

The bench

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

majority
majority
On appeal from
Environment and Land Court (trial court)
Not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending intended appeal)

Relief refused

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Injunction restraining the respondents from evicting, harassing or interfering with the applicant's stay on the suit property, and from developing, constructing on, selling, charging or disposing of the suit property, pending the intended appeal

The appeal is arguable but the nugatory limb fails: the applicant's own alternative prayer for the value of the undeveloped portion shows monetary compensation is an adequate remedy, and he has not alleged the respondents cannot pay

p. 4

Costs

The application is dismissed with costs (to the respondents; costs of the application awarded against the applicant).

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.

A 5(2)(b) injunction is granted on difierent considerations and it is on those considerations that we determine the matter before us.
p. 3Correct test for rule 5(2)(b) injunctions
The upshot is that the Notice of Motion dated 24th October 2024 lacks merit and is hereby dismissed with costs.
p. 4Final orders - dismissal of the application
In so far as the applicant has not demonstrated, nay alleged, that the respondents are not in a position to pay up the compensation when called upon, then it has not been established that the appeal will be rendered nugatory if we do not grant the injunctions sought.
p. 4Nugatory limb not satisfied

Issues in the judgment

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minor

The application is described as dated 29th October 2024 at the outset but the final order dismisses a 'Notice of Motion dated 24th October 2024', creating an internal inconsistency about the date of the motion.

minor

The application is characterised as seeking injunctions 'pending hearing and determination of an intended appeal', yet no appeal is stated to have been filed - only a notice of appeal; the relief sought and the rule 5(2)(b) framework sit slightly uneasily together.

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, "Saggaf v Edarus & 3 others (Civil Application E121 of 2024) [2025] KECA 1396 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1396/eng@2025-07-31

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