Martin Gathogo Ndumbi & 1 other v Lucy Wanjiru Muturi & 1 other
The bottom line
#The Court of Appeal refused to halt contempt sentencing because the applicants never filed the correct notice of appeal for the decision they were challenging.
What this practically means
#Executive summary
#Key legal issues
#Whether rule 5(2)(b) jurisdiction was properly invoked
It was not, because the applicants challenged the ruling of 5th February 2026 dismissing their ELC stay application without filing a notice of appeal against that ruling, relying instead on a notice of appeal against the earlier ruling of 23rd October 2025.
Rule 5(2)(b) jurisdiction is anchored on a notice of appeal against the decision impugned. The applicants filed a notice of appeal against the 23rd October 2025 contempt ruling, withdrew their 29th October 2025 stay application, submitted to the ELC, then sought stay of the 5th February 2026 dismissal without a fresh notice of appeal. That rendered the application a collateral attempt to revive the withdrawn application and an abuse of process, leaving the Court without jurisdiction.
Whether the twin principles of arguability and nugatory effect needed to be addressed
No; since jurisdiction was not invoked, the Court declined to consider the merits under the two conjunctive principles.
Having found the application an abuse of process for want of a notice of appeal against the operative ruling, the Court held it could not determine the application on its merits or in a vacuum. It expressly declined to consider whether the appeal was arguable and whether it would be rendered nugatory absent stay, since those principles arise only once jurisdiction is established.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules, 2022 requires a notice of appeal against the decision being appealed; absent such notice, the Court has no jurisdiction to grant stay of proceedings.
- Grant of orders under rule 5(2)(b) is discretionary and a party's conduct, including withdrawal of an earlier application and election to submit to the trial court's jurisdiction, affects the exercise of that discretion.
- A litigant cannot approbate and reprobate, nor litigate in installments; attempting to revive a withdrawn application through a fresh one is an abuse of court process.
Court orders
#- 1.Dismissal of the Notice of Motion dated 9th February 2026
- 2.No order as to costs
- On appeal from
- Environment and Land Court, Naivasha (Oundo, J.)
- Naivasha Environment and Land Court Appeal No. E001 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Gathogo Ndumbi & 1 other v Lucy Wanjiru Muturi & 1 other", Case Analysis (2026). Naivasha Environment and Land Court Appeal No. E001 of 2025 (application dated 9th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/422/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.