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Court of AppealDismissedCivil Application (ruling on application dated 18th December 2024) arising from Court of Appeal Civil Application No. NAI. E095 of 2024 and Civil Appeal No. E922 of 2023· [2026] KECA 439 (KLR)

Kiarie Babu v Agnes Wanja Nderu (sued As Administrator of The Estate of Gacheru Kanungu)

Court of Appeal
6 March 2026
SKS. Gatembu KairuAMA.O. MucheluleFOF. Ochieng
837 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land eviction order because the appellant provided no evidence of legal errors in the judgment he was appealing.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered on 6th March 2026 pursuant to Rule 33(4) of the Court of Appeal Rules owing to the death of Justice F. Ochieng, JA, who had been a member of the bench; the ruling is signed by S. Gatembu Kairu and A.O. Muchelule, JJ.A. The applicant, Kiarie Babu, sought stay of proceedings and stay of execution of a judgment and decree of the Environment and Land Court at Nairobi delivered on 24th May 2023 in ELC Case No. 270 of 2019, by which he and his family were ordered to vacate the suit property, Title Number Dagoretti/Riruta/2064, and were permanently restrained from entering or interfering with it. He sought the stay first pending hearing of Court of Appeal Civil Application No. NAI. E095 of 2024, and second pending hearing of Civil Appeal No. E922 of 2023. Relying on Butt v Rent Restriction Tribunal, counsel argued the Court had discretion to grant the orders and that the appeal would be rendered nugatory. The respondent neither appeared nor filed a response, having been served by email. The Court applied the test in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, holding that an applicant must show the intended appeal is arguable and that refusal would render it an exercise in vain. The judgment appealed from was not on the record, no errors in it were identified, and the applicant only asserted a risk of eviction. The Court also observed that the application duplicated the earlier pending application No. NAI. E095 of 2024 and could well amount to an abuse of process. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the twin principles of arguability and nugatory effect were satisfied for a stay of execution and stay of proceedings

Holding

They were not: no arguable grounds were demonstrated and the appeal's nugatory risk was not established; the application was dismissed.

Reasoning

The judgment of the ELC was not exhibited and the specific grievances with it were not identified in the application or submissions. All the applicant asserted was a risk of eviction. Without material showing the errors of the judgment, the Court could not assess arguability, and the discretionary threshold in Butt v Rent Restriction Tribunal was not met.

p. 2
02

Whether the application was an abusive duplication of the earlier pending application No. NAI. E095 of 2024

Holding

The Court found the present application duplicated the earlier pending application and could well amount to an abuse of process.

Reasoning

The applicant had already moved the Court by an application dated 29th February 2024 seeking stay of execution of the same judgment, which remained pending. Rather than pursue it, he filed the present application seeking effectively the same orders, which the Court viewed as a duplication and potential abuse of process.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must satisfy the Court that the intended appeal is arguable and that if the orders sought are refused and the appeal eventually succeeds, it will have been an exercise in vain.
  • A duplicate application seeking the same relief as an application already pending before the Court may amount to an abuse of the process of the Court.
  • The applicant must place before the Court material demonstrating the errors in the judgment so that the arguability of the appeal can be assessed.

Court orders

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  1. 1.The application dated 18th December 2024 fails and is dismissed
  2. 2.No orders as to costs
  3. 3.The ruling is delivered pursuant to Rule 33(4) of the Court of Appeal Rules owing to the demise of Justice F. Ochieng, JA
On appeal from
Environment and Land Court (ELC) at Nairobi
ELC Case No. 270 of 2019
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, delivered pursuant to Rule 33(4) of the Court of Appeal Rules

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, "Kiarie Babu v Agnes Wanja Nderu (sued As Administrator of The Estate of Gacheru Kanungu)", Case Analysis (2026). Civil Application (ruling on application dated 18th December 2024) arising from Court of Appeal Civil Application No. NAI. E095 of 2024 and Civil Appeal No. E922 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/439/eng@2026-03-06

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