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
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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
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.
Whether the appeal would be rendered nugatory and where public interest lies
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
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.
Legal principles established
#- 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
#- 1.The application dated 20th March 2025 seeking stay of execution of the ELC judgment and decree is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.