Malit & 8 others v Kemboi (The administrator of the Estate of the Late Joseph Kipkemboi Maritim) (Civil Appeal (Application) E067 of 2025) (10 December 2025) (Reasons) [2025] KECA 2171 (KLR)
The bottom line
#The Court of Appeal refused to pause an eviction because the applicants had withdrawn their notice of appeal, so no valid appeal existed to protect.
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 applicants demonstrated an arguable appeal for purposes of rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory absent stay
- 3.Whether the applicants had invoked the jurisdiction of the Court by filing a notice of appeal
Key legal issues
#Whether the applicants demonstrated an arguable appeal
They did not; no memorandum of appeal was annexed and no arguable ground was discernible from the supporting affidavit.
The Court restated that an arguable appeal need not be one that would succeed, and one arguable ground suffices, citing Chemaringo v Kibet. However, the applicants failed to annex the memorandum of appeal, and an examination of the supporting affidavit disclosed no arguable ground. The merits of the appeal remain for the hearing bench, but without the first limb established the Court did not consider the nugatory limb.
Whether the Court's jurisdiction was invoked
It was not; there was no evidence of a filed notice of appeal, and the applicants admitted withdrawing their earlier notice of appeal to pursue out-of-court negotiations.
Stay under rule 5(2)(b) presupposes a pending appeal. The notice of appeal and memorandum of appeal referenced by the applicants were not annexed to the application. On their own admission, the previously filed notice of appeal had been withdrawn under rule 83 of the Court's Rules. Absent a notice of appeal, there was no pending appeal to protect and the application could not stand.
Legal principles established
#- To succeed on a rule 5(2)(b) stay application, an applicant must satisfy twin conjunctive principles: the appeal is arguable and it would be rendered nugatory absent stay.
- An arguable appeal need not be one that will succeed; demonstrating at least one arguable ground suffices.
- A litigant who has not filed (or has withdrawn) a notice of appeal has not invoked the appellate court's jurisdiction, and a stay application on that footing is a non-starter.
Court orders
#- 1.Dismissal of the applicants' Notice of Motion dated 31st July 2025 seeking stay of execution
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Eldoret
- ELC No. 156 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2022 (stay of execution pending appeal)
Relief refused
#Order for stay of execution of the eviction orders issued on 31st July 2025
Applicants failed to establish the twin conjunctive principles of an arguable appeal and nugatory-ness, and had not invoked the Court's jurisdiction since no notice of appeal was on record, the earlier one having been withdrawn
Costs
The application was dismissed with costs to the respondent.
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.
To succeed, an applicant must satisfy the following twin conjunctive principles: that the appeal is arguable and that it would be rendered nugatory absent stay.
Accordingly, these are the reasons why the application was dismissed with costs under rule 34 of this Court's rules.
Having failed to demonstrate the first limb, this Court need not determine the nugatory aspect of this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malit & 8 others v Kemboi (The administrator of the Estate of the Late Joseph Kipkemboi Maritim) (Civil Appeal (Application) E067 of 2025) (10 December 2025) (Reasons) [2025] KECA 2171 (KLR)", Case Analysis (2025). Civil Appeal (Application) E067 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2171/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.