Oyugi & 2 others (Suing as the Administrators of the Estate of Hezekiah Nelson Oyugi - Deceased) v Sherman & another (Civil Application E476 of 2025) [2026] KECA 236 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the sale of a Lavington property pending appeal, but refused to pause the ongoing land case.
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 have an arguable appeal
- 2.Whether, absent the orders sought, the intended appeal, if successful, will be rendered nugatory
- 3.Whether a stay of proceedings before the ELC should issue
Key legal issues
#Arguability of the intended appeal
The intended appeal raised at least two arguable issues, including determination of constructive trust without a plea and the finding on a forged court order.
The court examined the grounds in the draft memorandum of appeal, highlighted by counsel, and identified two grounds of substance: that the trial court determined the suit on an unpleaded constructive trust, and that it found the applicants procured a forged court order effecting the transfer. Grounds of that character merit consideration by the Court and satisfy the first limb of the rule 5(2)(b) test.
Nugatory value and preservation of subject matter
Given the 1st respondent did not depose to her ability to compensate in damages, preservation of the suit property was merited.
The parties disputed the value of the land (applicants: Kshs.350-400 million; respondent: purchase price of Kshs.10 million plus ascertainable rent). The decisive consideration was that the 1st respondent gave no evidence of her ability to compensate the applicants in damages should she dispose of the property and the appeal succeed. The subject matter being land, potentially irreversible disposal justified an injunction preserving it pending appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two principles: an arguable appeal, and that the appeal will be rendered nugatory absent the orders sought.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible and, if not, whether damages would be an adequate remedy.
Court orders
#- 1.An injunction restraining the 1st respondent from transferring or otherwise disposing of the suit property pending hearing and determination of the applicants' appeal
- 2.Refusal of stay of proceedings in Nairobi ELC Case No. 1517 of 1998
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- Nairobi ELC Case No. 1517 of 1998
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in Nairobi ELC Case No. 1517 of 1998
The court was not satisfied that continuation of post-judgment proceedings before the ELC would render the appeal nugatory
Costs
The costs of the application shall abide the outcome of the appeal.
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.
Accordingly, we hereby grant an injunction restraining the 1st respondent from transferring or otherwise disposing of the suit property pending hearing and determination of the applicants' appeal.
The costs of the application shall abide the outcome of the appeal.
First, that it has an arguable appeal and, secondly, that absent the orders sought, the intended appeal, if successful, will be rendered nugatory
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible; and if not reversible, whether damages would be an adequate remedy
Issues in the judgment
#The judgment records the applicants submitting the property value 'as at 1990' for the respondent, but the agreement for sale referenced elsewhere is dated 13th January 1998 - the judgment itself notes 'while the respondent places it at the purchase value as at 1990'.
The 1st respondent's afidavit is described as opposing the application, but the opening paragraph describes the deponent as 'she' while the application is described as supported by the 2nd applicant; the parties' full names are not consistently given in the judgment copy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyugi & 2 others (Suing as the Administrators of the Estate of Hezekiah Nelson Oyugi - Deceased) v Sherman & another (Civil Application E476 of 2025) [2026] KECA 236 (KLR)", Case Analysis (2026). Application dated 31st July 2025 (rule 5(2)(b), Court of Appeal Rules, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/236/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.