Makara & 3 others v Muchumersun
The bottom line
#The Court of Appeal refused to stop a landowner from using disputed land because the appellants never explained what their appeal was actually about.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was not shown to be arguable because the applicants did not annex a draft memorandum of appeal or otherwise indicate the issues they pursue on appeal
The court applied Somak Travels and Stanley Kang'ethe: one arguable point suffices and it need not succeed, but it must be identified. The applicants merely asserted animosity, change of soil texture and loss without setting out grounds, so the court could not assess arguability.
Nugatory value of the appeal
No substantial loss was demonstrated; there was no imminent eviction or alienation and damages would be an adequate remedy
Relying on Reliance Bank v Norlake and Mukuma v Abuoga, the court weighed competing hardship. The respondent has occupied the land for over 50 years, construction is complete, and no imminent danger of eviction or sale to third parties exists, so the appeal would not be rendered nugatory.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if denied
- A single bona fide arguable ground suffices, but none was demonstrated where the applicants did not disclose the nature of their intended appeal
Court orders
#- 1.The notice of motion dated 24th May 2024 seeking a temporary injunction is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court at Migori
- ELC Case No. 6 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; sections 1(A & B), 3, 3A, 18 & 63(E) of the Civil Procedure Act; Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makara & 3 others v Muchumersun", Case Analysis (2025). Civil Appeal (Application) E242 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2193/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.