Ndungu v Ndichu & 2 others (Civil Application E566 of 2024) [2025] KECA 1482 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a contempt-related eviction and Kshs.7 million payment, ruling the intended appeal was arguable and would be wasted if execution proceeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable and not frivolous
- 2.Whether the intended appeal, if successful, would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal was arguable
The grounds raised against the impugned ruling were not frivolous; they raised bona fide issues on the identity and ownership of plots A69/A70 versus plots 1927/1928, joinder of the applicant, and the contempt conviction
The Court applied the settled Kang'ethe Kinyanjui threshold, asking whether the draft grounds raised at least one bona fide issue deserving full argument. Counsel had identified disputes over whether plots A69 and A70 under LR 10904/2 were the same as Nairobi Block 105 plots 1927 and 1928, whether the Judge erred in refusing to join the applicant, and whether the contempt finding was justified. These were sufficient to satisfy the arguability limb.
Whether the intended appeal would be rendered nugatory
Yes - enforcement of the eviction orders and the contempt proceedings could see the applicant committed to civil jail and the decretal sum recovered, losses that would not be reversible or compensable if the appeal succeeded
The Court accepted that the applicant risked imprisonment following the notice to show cause issued after the contempt finding, and that eviction and recovery of Kshs.7,000,000 would be practically irreversible given doubt about the decree-holder's ability to refund. Loss of liberty would make a successful appeal academic. The two limbs of the Rule 5(2)(b) test were therefore satisfied, justifying a conditional stay.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
- An arguable appeal is one raising at least one bona fide issue for full argument; nugatory-ness turns on whether what is to be stayed is reversible or compensable in damages
- Loss of liberty through committal to civil jail renders an intended appeal nugatory and justifies stay
Court orders
#- 1.Stay of execution of the ruling of Mbugua, J. delivered on 30th October 2024 and of the judgment and decree of the ELC in Milimani ELC Cause No. 179 of 2009, pending the hearing and determination of the appeal
- 2.Stay granted on condition that the applicant files and serves the appeal within 30 days, failing which the stay lapses automatically
- 3.Costs to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nairobi
- Milimani ELC Cause No. 179 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
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.
The principles applicable in the application for stay are now settled. The applicant has to show that the intended appeal or the appeal (if filed) is arguable, and not merely frivolous.
An arguable appeal is one that raises at least one bona fide issue that should be argued fully before the Court.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved.
That being the case, we allow the application but on condition that the applicant files and serves the appeal within 30 days from today. The stay will lapse automatically if the appeal is not filed and served as directed.
We direct that costs do abide the appeal.
Issues in the judgment
#The judgment inconsistently dates the impugned ruling, describing it as 'delivered on 30th October 2024' in the application but stating the applicant's application before the ELC was 'dismissed with costs' in 'a ruling delivered on 20th January 2024', which precedes the 23rd June 2022 judgment chronology in an internally inconsistent way
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Ndichu & 2 others (Civil Application E566 of 2024) [2025] KECA 1482 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)) arising from Milimani ELC Cause No. 179 of 2009, Joseph Ndichu Kiiniu v Ann Wairimu Ndung'u & Stanley Murigi T/A Ann Rose Nursery and Primary School & Embakasi Ranching Co. Ltd. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1482/eng@2025-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.