Rael Kimaiyo & 3 others v David Cheruiyhot Kimilot
The bottom line
#The Court of Appeal refused to stop an eviction pending appeal, holding that money damages could adequately compensate the losing party later.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Court of Appeal's jurisdiction under Rule 5(2)(b)
The jurisdiction is original and discretionary, and is essentially a preservation jurisdiction safeguarding the substratum of an appeal.
The court relied on Trust Bank Limited v Investech Bank Limited describing the Rule 5(2)(b) jurisdiction as original and discretionary, and on the Supreme Court's decision in KNUT (Civil Application No. 16 of 2015) characterising the rule as a tool of preservation. The discretion is wide and unfettered, exercised to preserve the ends of justice, including letting a winning party enjoy the fruits of judgment.
Whether the intended appeal was arguable
The first limb was satisfied: the appeal was arguable, since an arguable appeal need not necessarily succeed.
Considering the grounds in the draft memorandum of appeal, and bearing in mind that an arguable appeal is not one that will necessarily succeed, the court declined to characterise the appeal as frivolous. This satisfied the first prerequisite of the Rule 5(2)(b) test as laid down in Chris Munga N. Bichage v Richard Nyagaka Tongi.
Whether the appeal would be rendered nugatory absent an injunction
The second limb failed: eviction of the applicants would be reversible, as they could be compensated by damages, and there was no indication the respondent would dispose of the property.
The court applied Stanley Kang'ethe Kinyanjui v Tony Ketter on the meaning of 'nugatory'. Since the applicants, if evicted and successful on appeal, could be compensated in damages, and the property could be valued even if disposed of, no irreversible harm was shown. The court stressed preserving the ends of justice, including a deservedly winning party enjoying the fruits of judgment.
Respondent's contention that the application was incompetent for want of service of the notice of appeal
The court did not rule on this objection, instead disposing of the application on the merits of the Rule 5(2)(b) test.
The respondent argued that no notice of appeal was served within 7 days under Rule 77(2) and that leave to serve out of time was not sought. The judgment records the objection but the reasoning and disposition proceed entirely on the two Rule 5(2)(b) limbs; the competency objection was not expressly determined.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory without the orders; demonstrating only one limb is insufficient.
- 'Nugatory' means not only worthless or futile but also trifling; the test is whether what is sought to be stayed is reversible or compensable in damages.
Court orders
#- 1.The motion dated 3rd June 2025 seeking a temporary injunction/status quo order pending appeal is dismissed
- 2.Costs of the application shall abide the outcome of the pending appeal
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- ELC O.S No. 321 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (and Rule 34(7) for reasons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rael Kimaiyo & 3 others v David Cheruiyhot Kimilot", Case Analysis (2025). Civil Application E042 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2173/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.