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Court of AppealDismissedCOACA NO. 163/2021

Mukuriah v Otara & 4 others (Civil Appeal (Application) E163 of 2025) [2026] KECA 905 (KLR)

Court of Appeal
15 May 2026
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause the orders cancelling a Nakuru land title because the buyer could be refunded if the appeal later succeeds.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th December 2025 under Rule 5(2)(b) of the Court of Appeal Rules 2022, Boniface Munyi Mukuriah sought a stay of execution of the judgment of Hon. Dr MA Odeny delivered on 2nd July 2025 in Nakuru ELC E031 of 2022. The trial court had held that Nakuru/Municipality Block 20/112 was public land reserved for the Ministry of Livestock and Fisheries Development, ordered cancellation of the 1st respondent's registration and its reversion to the Ministry, and awarded the 1st respondent a refund of the purchase price of Ksh 17,144,091.10 plus costs against the applicant, who had sold and transferred the property. The applicant lodged a notice of appeal and an intended appeal, contending that the trial judge erred in finding his title unlawfully acquired and in failing to treat him as an innocent purchaser for value. The 1st respondent opposed, arguing the appeal was not arguable, that the land reversion had already been executed, and that the money decree could be refunded if the appeal succeeded. The Court (Mativo, Kairaria and Ahmed Issack, JJA) applied the settled two-limb test for stay: arguability and nugatory-ness, both of which must be satisfied. It accepted that whether the applicant's title was illegally, unlawfully or through a corrupt scheme acquired was arguable, satisfying the first limb. However, it was not persuaded the appeal would be rendered nugatory: the reverted title can be retransferred if the appeal succeeds, and the applicant failed to demonstrate the 1st respondent's inability to refund the decretal amount. The application was therefore dismissed with costs to the 1st respondent.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found one ground arguable, satisfying the first limb.

Reasoning

The Court examined the grounds of appeal and accepted that the challenge to the finding that the applicant acquired title illegally, unlawfully or through a corrupt scheme was a bona fide issue fit for the full appeal. Arguability is a low threshold satisfied by a single arguable ground, and the Court expressly stated the applicant had satisfied the first limb of the test for stay.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The Court held it would not, so the application failed.

Reasoning

The Court reasoned that the land reverts to the relevant ministry and can be retransferred should the appeal succeed, so no irreversible harm arises on that limb. As to the money decree for the refund of the purchase price, the applicant neither alleged nor demonstrated that the 1st respondent would be unable to refund the decretal amount. Since both limbs must be satisfied, the application failed and was dismissed with costs.

p. 3

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must satisfy both the arguability and the nugatory limbs; failure on either limb defeats the application.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 5th December, 2025
  2. 2.Costs of the application awarded to the 1st respondent

The bench

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

majority
majority
On appeal from
Environment and Land Court
Nakuru ELC E031 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the judgment and decree of 2nd July, 2025

Only the first limb (arguability) was satisfied; the applicant failed to demonstrate that the appeal would be rendered nugatory, since the title can be retransferred if the appeal succeeds and he showed no inability by the 1st respondent to refund the decretal amount

p. 3

Costs

The application was dismissed with costs to the 1st respondent.

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.

As the law requires that both conditions must be met before the court can exercise its discretion the application fails. We find no merits in the application dated 5th December, 2025 and dismiss it with costs to the 1st respondent.
p. 3Disposition - dismissal of the stay application with costs
To succeed, an applicant must satisfy the court that he has an arguable appeal which would absent an order of stay be rendered nugatory.
p. 2Statement of the Rule 5(2)(b) test
The applicant has thus not satisfied the second limb of the requirements for grant of an order of stay of execution.
p. 3Failure of the nugatory limb

Issues in the judgment

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minor

Internal date inconsistency: the notice of appeal is dated 9th July 2025 yet the appeal is styled COACA No. 163/2021, a year earlier than the trial judgment

minor

Amount of the refund decree appears garbled as 'ksh 17,1440911.10'

minor

Application dated 5th December 2025 but supporting affidavit submissions highlighted on 21st April 2026, i.e. dates run forward past the certification without contradiction in substance

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, "Mukuriah v Otara & 4 others (Civil Appeal (Application) E163 of 2025) [2026] KECA 905 (KLR)", Case Analysis (2026). COACA NO. 163/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/905/eng@2026-05-15

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