Matiri (Deceased) v Munene & 3 others (Civil Appeal (Application) E036 of 2022) [2026] KECA 660 (KLR)
The bottom line
#Kenya's Court of Appeal refused to freeze execution of a land judgment, ruling that an arguable appeal alone isn't enough — you must also prove waiting would cause irreparable harm.
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 Court had jurisdiction under rule 5(2)(b), i.e. whether a notice of appeal had been lodged in respect of the judgment sought to be stayed
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal would be rendered nugatory if the stay of execution of the ELC judgment is not granted
Key legal issues
#Jurisdiction under rule 5(2)(b) depends on a lodged notice of appeal
The application was competent because the record contained a Notice of Appeal dated 17th February, 2020 lodged on 18th February, 2020; absent such a notice the Court would have had no jurisdiction.
The Court, on its own perusal of the record, found a copy of the ELC judgment and a Notice of Appeal in the Record of Appeal, and held that had no notice of appeal been filed it would have had no business meddling in the High Court/ELC decision, adopting Omolo JA's explanation in the Safaricom case.
The nugatory-aspect test for a stay of execution
Even if the appeal is arguable on the existence of a trust over the suit land, the applicant failed to show the appeal would be rendered nugatory because the land was unlikely to be sold and could be restored if the appeal succeeded.
The Court accepted a possible arguable point challenging the ELC finding of a trust in favour of the respondents. However, on the nugatory limb, it reasoned that execution would not result in the sale of the land, and that restoration was possible upon success, so the balance did not favour a stay.
Legal principles established
#- The Court of Appeal has no jurisdiction under rule 5(2)(b) to grant a stay unless a notice of appeal, or an intention to appeal, has been manifested by lodgment of a notice of appeal in respect of the decision sought to be stayed.
Court orders
#- 1.The notice of motion dated 22nd January, 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Meru
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELC (Meru) judgment by Cherono J pending the hearing and determination of the appeal
The appeal may be arguable on the trust finding, but execution would not render it nugatory; the land is unlikely to be sold and can be restored if the appeal succeeds
Costs
The application is dismissed with costs (costs to the respondents)
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.
If there is no notice of appeal lodged, one cannot get an order under Rule 5 (2) (b) because as I have already pointed out the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgment of the notice of appeal the Court of Appeal would have no business to meddle in the decision of the High Court.
The applicant may have an arguable point in terms of challenging the finding on the existence of a trust. However, we are of the view that even if execution takes place, there is no likelihood the suit land will be sold.
We find that the application dated 22nd January, 2025 lacks merit and is dismissed with costs.
Issues in the judgment
#Internal date inconsistency: the motion was heard on 7th April, 2025 yet the judgment is stated to have been delivered on 25th March, 2026; the opening also describes the motion as dated 22nd January, 2025 while paragraph 6 refers to a Notice of Appeal dated 10th February, 2020 against a judgment of 7th February, 2020 delivered 23rd February, 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matiri (Deceased) v Munene & 3 others (Civil Appeal (Application) E036 of 2022) [2026] KECA 660 (KLR)", Case Analysis (2026). Civil Application dated 22nd January, 2025 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/660/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.