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Court of AppealPartially AllowedCivil Application No. E of 2025 (Nairobi)

Kathuma v Musimba (Civil Application E599 of 2025) [2026] KECA 820 (KLR)

Court of Appeal
30 April 2026
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped a forced land transfer pending appeal, but the stay lapses if the appeal isn't filed within 60 days.

What this practically means

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Executive summary

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This is a Rule 5(2) application decided by the Court of Appeal at Nairobi (Kairu, Nyamweya and Muchelule, JJA) in a single unanimous judgment. It arises from a judgment of Obaga, J. of the Environment and Land Court at Makueni in ELC No. E040 of 2022, delivered on 2nd October 2025, which found a valid sale agreement over parcel Konza South Block 2/207 (about 10 acres) bought by the respondent from the applicant for Kshs.1,000,000/=, ordered the applicant to transfer the parcel within 60 days, issued a permanent injunction against him, and dismissed his counterclaim for eviction. The applicant filed a notice of appeal and a motion dated 7th October 2025 seeking stay of execution, a temporary injunction and conservatory orders pending appeal, contending the sale agreement was a forgery and related to parcel 208 (5 acres), not parcel 207. Applying the Kang'ethe Kinyanjui twin test, the court found multiple arguable grounds — validity of the 10-acre sale, whether the sale was of 5 or 10 acres, alleged forgery or fraud, and misapprehension of evidence — and held the nugatory ground established since the property might be transferred out of the court's jurisdiction. The court rejected the respondent's negative-order objection because the order compelled transfer of title. Stay of execution was granted, conditional on the applicant filing and serving the appeal within 60 days, failing which the stay lapses automatically. Costs were made to abide the appeal. The decision below was not disturbed; the substantive appeal remains pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has demonstrated that the intended appeal is arguable
  2. 2.Whether, if stay is not granted, the intended appeal would be rendered nugatory
  3. 3.Whether the applicant is entitled to a temporary injunction and/or conservatory orders pending appeal

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The court found multiple arguable grounds: validity of the 10-acre sale, whether the sale was of 5 or 10 acres, alleged forgery or fraud, and alleged misapprehension of evidence by the trial court.

Reasoning

Applying the Kang'ethe Kinyanjui test, the court held each of the disputed issues — the validity of the 10-acre sale agreement over parcel 207, whether the transaction was for 5 acres (parcel 208) or 10 acres (parcel 207), forgery or fraud in the land transaction, and alleged misapprehension of evidence — raised bona fide issues warranting consideration on appeal. Each issue alone sufficed under the single-arguable-issue principle.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory test was satisfied: if stay were not granted, the suit property would be transferred to the respondent who might take it out of the court's jurisdiction.

Reasoning

Although the applicant remained registered owner, third parties were active on the land. The court reasoned that without a stay the property would be transferred to the respondent, who could possibly remove it from the court's jurisdiction, thereby rendering a successful appeal worthless. The respondent was already in possession, but the risk of transfer and potential alienation established the nugatory ground. The negative-order objection was rejected because the order required the applicant to transfer title.

p. 3

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must demonstrate that the intended appeal is arguable, in the sense that it raises bona fide issues, and that if stay is not granted and the appeal succeeds, it would be rendered nugatory.
  • A single arguable issue suffices for the purposes of an application for stay.
  • A positive order to transfer property is capable of being stayed; the negative-order doctrine does not apply where the applicant was ordered to transfer title.

Court orders

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  1. 1.Stay of execution of the judgment and decree issued on 2nd October 2025 by the ELC Court at Makueni in ELC No. E040 of 2022, in terms that the applicant's transfer of parcel 207 is stopped until the intended appeal is heard and determined
  2. 2.Applicant directed to file and serve the appeal within 60 days, failing which the stay order shall automatically lapse
  3. 3.Costs to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
Environment and Land Court
ELC No. E040 of 2022
Jurisdiction invoked
Rule 5(2) of the Court of Appeal Rules, 2022

Relief refused

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Deposit of rental proceeds into a joint account of the parties

Not addressed in the final orders; the court granted stay on the transfer of the suit property only

Costs

Costs will abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, we grant the stay of the execution of the judgment and decree issued on 2nd October 2025 by the ELC Court at Makueni in ELC No. E040 of 2022 in terms that the applicant’s transfer of parcel 207 is stopped until the intended appeal is heard and determined.
p. 3Final orders - stay of execution
So that the applicant does not go into slumber, he is directed to file and serve the appeal within 60 days from today, failing which the stay order shall automatically lapse.
p. 3Conditional stay - 60-day timelines
Costs will abide the outcome of the appeal.
p. 3Costs

Issues in the judgment

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minor

The judgment heading/case number is not stated; the application number must be inferred from the record (the notice of appeal was dated 4th October 2025 and the motion dated 7th October 2025). The respondent is also inconsistently described as 'his witnesses' in one passage.

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, "Kathuma v Musimba (Civil Application E599 of 2025) [2026] KECA 820 (KLR)", Case Analysis (2026). Civil Application No. E of 2025 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/820/eng@2026-04-30

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