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Court of AppealDismissedApplication by notice of motion dated 21st November 2024· [2025] KECA 1438 (KLR)

The Hon. Attorney General & 2 others v Joseph Ngulu Mungania & 3 others

Court of Appeal of Kenya
31 July 2025
1,603 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause orders protecting school land, ruling that preservative orders do not make an appeal pointless.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (S. ole Kantai, J. Lesiit and Ali-Aroni, JJAA) dismissed a notice of motion dated 21st November 2024 brought under article 164(3)(a) of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules 2022, seeking a stay of execution of a High Court ruling that had issued conservatory orders restraining the applicants from alienating or developing LR Tigania/Nikirimanchuma/6, land associated with Kirimanchuma Primary School. The applicants, including the Attorney General, argued that the intended appeal was arguable, that the refusal of a stay carried serious national security and public interest implications, and that the application was filed without delay. The respondents countered that the conservatory orders preserved the substratum of a pending petition concerning the alleged illegal alienation of public school land. Applying the twin principles under rule 5(2)(b), the court accepted, citing Silverstein, Yellow Horse Inns and Kenya Commercial Bank v Ombija, that the threshold for arguability is very low and that the draft memorandum disclosed arguable points. However, the applicants failed on the second limb: they did not demonstrate that the intended appeal would be rendered nugatory without a stay, since the conservatory orders were meant to preserve the substratum of the petition. The application was accordingly dismissed, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the memorandum of appeal appears to have arguable point(s) at the low threshold required, but arguability alone does not secure a stay.

Reasoning

The court reiterated that the arguability threshold is low; one arguable point suffices and the applicant need not show it will succeed. The draft memorandum of appeal raised arguable points concerning the legality of the land allocation and public interest. This first limb of the twin principle was therefore satisfied, but the application still failed because the second limb was not met.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

No - the applicants did not demonstrate nugatory-ness; the conservatory orders preserve the substratum of the main petition.

Reasoning

The trial court had ordered no further developments on the suit land other than on the land occupied by the school, in order to safeguard the substratum of the petition, having found no proof that the alienation process was at its final stage. The court found nothing showing how such preservative conservatory orders would render the intended appeal useless, overtaken by events, or a mere academic exercise. Failure on this second limb was fatal to the application.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • One arguable point suffices and the applicant need not show the arguable point would succeed.
  • The threshold for an arguable point on a rule 5(2)(b) application is very low.
  • Conservatory orders preserving the substratum of a petition will not ordinarily render an intended appeal nugatory.

Court orders

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  1. 1.The application for stay of execution pending hearing and determination of the application and intended appeal is dismissed
  2. 2.The costs of the application will abide by the outcome of the appeal
On appeal from
High Court
Jurisdiction invoked
Article 164(3)(a) of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act and 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, "The Hon. Attorney General & 2 others v Joseph Ngulu Mungania & 3 others", Case Analysis (2025). Application by notice of motion dated 21st November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1438/eng@2025-07-31

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