Deputy County Commissioner, Kasarani Sub-county Nairobi County & 2 others v Reuben Magondu Warirah & 1 other
The bottom line
#The Court of Appeal refused to pause a Kshs. 23 million land judgment against government officials because they raised the jurisdiction objection too late and showed no hardship.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable, particularly on the alleged lack of ELC jurisdiction over what the applicants characterised as a boundary dispute over public land
The court found no single arguable point had been raised; the jurisdiction issue was not raised in the defence or before the trial court, and the applicants having adduced no evidence, the 1st respondent's evidence was unchallenged
The court noted that the applicants did not plead the jurisdictional objection in their defence nor raise it by preliminary point at trial, and that an issue not raised at trial may not be raised for the first time on appeal. Having called no evidence at trial, the applicants left the 1st respondent's evidence unchallenged, leaving no material basis to attack the judgment. The double certification under sections 17 and 18 of the Land Registration Act was therefore not a bona fide arguable point at this stage.
Whether the intended appeal would be rendered nugatory if stay and injunction were refused
The nugatory aspect was not demonstrated; the 1st respondent swore he was a man of means able to repay any damages, and that assertion was unchallenged
The second limb of the Rule 5(2)(b) test requires showing that damages could not reasonably compensate the applicants if the appeal ultimately succeeded. The 1st respondent deponed that he was a man of means, ready to invest heavily in the suit property by putting up a mall. The applicants did not challenge that assertion. Accordingly, the court was not satisfied that refusal of stay or injunction would leave the applicants in a perilous position.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the appeal finally succeeds, it will have been rendered nugatory absent stay or injunction
- A party may not raise on appeal an issue that was not raised and decided at trial
Court orders
#- 1.The application dated 13th March 2025 under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution and an injunction pending appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- Environment and Land Court at Nairobi
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deputy County Commissioner, Kasarani Sub-county Nairobi County & 2 others v Reuben Magondu Warirah & 1 other", Case Analysis (2025). Application dated 13th March 2025 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1725/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.