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Court of AppealDismissedNot stated in the judgment· [2025] KECA 1516 (KLR)

Ashford Kaugi Mbiuki & 4 others v Julius Mungathia & 1 other

Court of Appeal of Kenya
19 September 2025
WKW. KaranjaJMJamila MohammedLKL. Kimaru
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to protect land applicants who had already been evicted, ruling that appeal protections cannot undo events that have already happened.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction restraining the respondents from entering, occupying or dealing with parcel Kiera/E.Magutuni/2048, or alternatively an inhibition order against the title, pending an intended appeal against a High Court judgment of P.M. Njoroge J. dated 19th December, 2018, which dismissed the applicants' claim for ownership of the suit property by adverse possession. The applicants asserted that their father bought the land from the 1st respondent in 1992 and that they occupied it until they were evicted by the 2nd respondent, George Wamae Mwaniki, in 2019, a few months after judgment. The application was unopposed and canvassed by written submissions. Applying the settled twin principles, the Court found the arguability limb satisfied, holding that the claim founded on adverse possession and family land was amenable to argument. However, the nugatoriness limb failed: the applicants had already been evicted, leaving nothing to restrain, and the Court held that no case was made for an inhibition order because success on appeal would reverse any transfer, with lis pendens notifying third parties of the pending litigation. The application was dismissed with no orders as to costs. The decision is not binding on any lower court, as it concerns the exercise of appellate interlocutory discretion on the facts.

Key legal issues

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01

Whether the applicants satisfied the arguability limb of Rule 5(2)(b)

Holding

Yes - the claim based on adverse possession and family land was not frivolous and was amenable to argument on appeal

Reasoning

The applicants claimed to have acquired ownership by adverse possession, occupying since 1992 after their father's purchase, and that the property was family land clandestinely transferred. The Court held it could not dismiss such a claim off-hand, applying the settled standard that an arguable appeal need not succeed but must be capable of being confirmed by the court.

p. 2
02

Whether the intended appeal would be rendered nugatory absent an injunction or inhibition order

Holding

No - the applicants had been evicted, so there was nothing to restrain; and any third-party dealing would be subject to lis pendens and reversible if the appeal succeeded

Reasoning

The applicants conceded the injunctive prayer was overtaken by events, having been evicted after judgment. On the alternative inhibition prayer, the Court reasoned that success on appeal would reverse any transfer, and the doctrine of lis pendens would notify any prospective purchaser, so no nugatory prejudice was demonstrated.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if the relief is not granted
  • An arguable appeal need not be one that must necessarily succeed; it suffices that it is capable of full confirmation by the court
  • Lis pendens operates to protect third-party purchasers from claims arising during the pendency of an appeal, making inhibition orders unnecessary in such circumstances

Court orders

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  1. 1.The application dated 24th December, 2018 is dismissed
  2. 2.No orders as to costs
On appeal from
High Court (superior court)
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Ashford Kaugi Mbiuki & 4 others v Julius Mungathia & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1516/eng@2025-09-19

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