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Court of AppealDismissedApplication dated 20th March 2025 (appeal from ELC Case No. 113 of 2015, Machakos)· [2026] KECA 115 (KLR)

Sarah Nyiva Hillman & 2 others v Thomas Mumo Maingey (suing On His Own Behalf and On Behalf of The Franciscans of Our Lady of Good Counsel Sisters Registered Trustees, David Masika, Evergreen Crops Limited, Waridi Limited, Daniel Mutisya Ndonye and Vallley Brook Capital Limited) & 2 others

Court of Appeal
30 January 2026
2,051 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a ruling that declared a public right of way over private Machakos land, finding the orders reversible.

What this practically means

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Executive summary

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By a notice of motion dated 20th March 2025 under rule 5(2)(b) of the Court of Appeal Rules, the applicants sought stay of execution of a judgment of the Environment and Land Court at Machakos (A. Nyukuri J.) dated 19th February 2025 in ELC Case No. 113 of 2015. The trial court had declared that the 1st respondent and other adjacent proprietors were entitled to a right of way across the applicants' properties (L.R Nos. 1338/91, 1338/92 and 1338/93) along 39 Quarry Road, issued an injunction restraining the applicants from obstructing the road, allowed delineation of the road and amendment of the deed plan, and dismissed the applicants' counterclaim. The applicants argued their intended appeal was arguable, challenging the trial court's treatment of unpleaded prescriptive easement issues and contending that implementation would permanently alienate portions of their land without compensation. The court applied the settled two-limb test from Stanley Kangethe Kinyanjui v. Tony Ketter: arguability and nugatory impact, with public interest as an additional consideration per Munya v Kithinji. It found the prescriptive easement ground arguable but held that the applicants had failed the nugatory test: delineation of the road and amendment of the deed plan are reversible if the appeal succeeds, the orders required no positive act from the applicants, and the public interest in the community's continued use of the road weighed against a stay. The application was dismissed with costs to the 1st respondent. This is an interlocutory decision; it does not disturb the decision of the trial court.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants' challenge to the trial court's application of the doctrine of prescriptive easement and its finding on prescriptive rights is an arguable point meriting consideration

Reasoning

The applicants contended that the trial court addressed unpleaded issues of prescriptive rights and burdened their parcels with a prescriptive easement without adequate evidentiary support, and that the orders amounted to compulsory acquisition without compensation. The court agreed this raised a bona fide point deserving consideration, satisfying the first limb of the rule 5(2)(b) test, since even a single bona fide ground suffices.

p. 4
02

Whether the appeal would be rendered nugatory and where public interest lies

Holding

The applicants failed the nugatory limb: delineating the road and amending the deed plan is reversible, and the public interest in the road's continued use weighed against a stay

Reasoning

The court noted that the road had been used openly by neighbours and the public since at least 1970, a fact undisputed in the applicants' affidavits. Amending the deed plan and marking the road causes no permanent loss and can be reversed on appeal. The orders to be stayed required no positive action by the applicants, and the public interest in the community's use of the road outweighed the applicants' concerns.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two principles: that the appeal or intended appeal is arguable (not frivolous), and that absent stay of execution the appeal, if successful, will be rendered nugatory; public interest may be an additional consideration in appropriate cases
  • An arguable appeal need not be one that will necessarily succeed; a single bona fide ground of appeal suffices to satisfy the arguability test
  • Where the orders sought to be stayed are reversible (such as delineation of a road on a deed plan), their implementation does not render an intended appeal nugatory

Court orders

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  1. 1.The application dated 20th March 2025 seeking stay of execution of the ELC judgment and decree is dismissed
  2. 2.Costs of the application to the 1st respondent
On appeal from
Environment and Land Court at Machakos
ELC Case No. 113 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

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, "Sarah Nyiva Hillman & 2 others v Thomas Mumo Maingey (suing On His Own Behalf and On Behalf of The Franciscans of Our Lady of Good Counsel Sisters Registered Trustees, David Masika, Evergreen Crops Limited, Waridi Limited, Daniel Mutisya Ndonye and Vallley Brook Capital Limited) & 2 others", Case Analysis (2026). Application dated 20th March 2025 (appeal from ELC Case No. 113 of 2015, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/115/eng@2026-01-30

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