Warui & 6 others v Adan & 5 others (Civil Application E632 of 2025) [2026] KECA 707 (KLR)
The bottom line
#Kenya's Court of Appeal temporarily froze a Kajiado land ruling, protecting property owners from demolition and subdivision while their appeal is heard.
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 demonstrated that their intended appeal is arguable
- 2.Whether the applicants have shown that unless stay orders are granted, the appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable because it raised questions of fair hearing due to counsel's failure to appear or file documents, and of ownership of the suit property based on an un-presented title deed.
The applicants deponed that their advocate failed to appear or file documents so their case was never heard, raising a fair-hearing complaint. They also annexed a title deed dated 25th August 2020 and an official search for Kajiado/Kitengela/3707 never presented below. These ownership and fair-hearing questions were weighty and could not be dismissed as frivolous, satisfying the arguability limb.
Whether the appeal would be rendered nugatory absent stay
The nugatory limb was satisfied because demolitions had occurred and ongoing subdivision and transfers would destroy the substratum of the appeal.
The court found demolitions had already taken place and that subdivision and transfers were ongoing. If the property were fully subdivided and transferred to third parties, a successful appeal would be of no practical value and the applicants would suffer irreparable prejudice including displacement from their homes. Preserving the subject matter was therefore necessary.
Invocation of rule 5(2)(b) jurisdiction
Although the notice of motion did not invoke rule 5(2)(b), the court treated the application as if brought under that rule because what it sought was clear.
The motion cited sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rules 6(1), (2), (3) and (6) but not rule 5(2)(b). Following Jane Muthoni Mberere v David Oyetu Kamau, the court held that where the body of the application makes clear the relief sought, procedural mislabelling is cured by treating it as a rule 5(2)(b) application.
Legal principles established
#- An application not expressly brought under rule 5(2)(b) may be treated as if brought under that rule where the body of the application makes clear what is sought.
- Under rule 5(2)(b), both limbs must be satisfied: an arguable appeal and the risk that the appeal, if successful, would be rendered nugatory absent stay or injunction.
- An arguable appeal need not necessarily succeed but must raise at least one bona fide issue deserving consideration.
Court orders
#- 1.Temporary stay of execution and/or compliance with the ruling and orders of the Environment and Land Court at Kajiado delivered on 16th October 2025 in ELC Case No. 148 of 2018, pending the hearing and determination of the intended appeal
- 2.Applicants to file and serve the substantive appeal within the timelines prescribed by law
- 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 Kajiado
- ELC Case No. 148 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
There shall be a temporary stay of execution and/or compliance with the ruling and orders of the Environment and Land Court at Kajiado (M D Mwangi, J) delivered on 16th October 2025 in ELC Case No. 148 of 2018, pending the hearing and determination of the intended appeal.
The applicants shall file and serve the substantive appeal within the timelines prescribed by law, and costs of the application shall abide the outcome of the appeal.
an arguable appeal need not necessarily succeed but must raise at least one bona fide issue deserving consideration.
we shall treat the application as if it was brought under rule 5(2)(b) of this Court’s Rules since from the body of the application it is clear as to what the applicant seeks.
Issues in the judgment
#The notice of motion does not invoke rule 5(2)(b) although the court exercises jurisdiction under that rule
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui & 6 others v Adan & 5 others (Civil Application E632 of 2025) [2026] KECA 707 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/707/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.