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Court of AppealPartially AllowedCivil Application No. E0XX of 2022 (Nyeri) — notice of motion dated 27th October, 2022

Kamau & another v Ngugi (Civil Application E085 of 2022) [2026] KECA 1320 (KLR)

Court of Appeal
3 July 2026
WKW. KaranjaJMJamila MohammedLKL. Kimaru
1,545 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 land judgment from being executed, ruling the appeal was arguable and the landholder in possession would suffer irreparable harm.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court decision of the Court of Appeal at Nyeri on a notice of motion dated 27th October 2022 brought under Rule 5(2)(b) of the Court of Appeal Rules. The applicants sought a stay of execution of the judgment of the Environment and Land Court in ELC Case No. 36 of 2022, delivered on 23rd June 2022, together with an injunction restraining the respondent from interfering with land parcel No. Loc/4/Gakarara/1156/23. The ELC had found that the 1st applicant held the suit property in customary trust for the respondent and ordered cancellation of the 2nd applicant's title, the 2nd applicant being a purchaser from the 1st applicant. The 2nd applicant deponed that he had filed a notice of appeal and record of appeal, was in possession, and had erected a commercial building occupied by tenants; that the trial court had found him a bona fide purchaser for value without notice; and that eviction of tenants and demolition would cause irreparable loss and render the appeal nugatory. The respondent opposed, asserting the applicants had no arguable appeal, could be compensated in damages, and were entitled to the fruits of judgment, and noting a similar application had been dismissed by the ELC. Applying the twin principles from Trust Bank Limited v. Investech Bank Limited and Stanley Kangethe Kinyanjui v. Tony Ketter — arguability and nugatory-ness — the court found the memorandum of appeal raised arguable grounds, notably whether the ELC correctly found a customary trust, and that the applicants would suffer irreparable harm in a land dispute where the status quo should be maintained. The application was allowed: the respondent was restrained from executing the ELC judgment and decree pending the hearing and determination of the appeal, with costs of the application in the appeal. The decision below was not itself disturbed; the court granted only interlocutory relief.

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 (not frivolous)
  2. 2.Whether, unless stay/injunction is granted, the appeal if successful will be rendered nugatory and the applicants will suffer irreparable loss

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

Yes — the memorandum of appeal raises arguable grounds, including whether the ELC correctly found a customary trust over the suit property.

Reasoning

The court applied the settled test that an arguable appeal is one that is not frivolous and ought to be argued fully; a single bona fide arguable ground suffices. It did not make definitive findings on the merits, noting that doing so at the interlocutory stage may embarrass the ultimate hearing of the main appeal. The customary-trust question was identified as a bona fide arguable ground.

p. 3
02

Whether the appeal, if successful, would be rendered nugatory absent relief

Holding

Yes — the 2nd applicant is in possession, holds title, and has extensively developed the property with tenants in occupation; the status quo should be maintained.

Reasoning

The court found the applicants would suffer irreparably and the appeal would be rendered nugatory if injunction was refused. The respondent would suffer no prejudice beyond being kept out of the property pending appeal, and would assume possession if successful. Being a land dispute, maintenance of the status quo was considered appropriate.

p. 3

Legal principles established

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  • To succeed under Rule 5(2)(b), an applicant must show the appeal (or intended appeal) is arguable and that, unless stay is granted, the appeal if successful will be rendered nugatory; a single bona fide arguable ground suffices.
  • An arguable appeal need not be one that will succeed; it is one that is not frivolous and deserves full argument, and the court must not make definitive findings of fact or law at the interlocutory stage.
  • In land disputes pending appeal, the status quo should be maintained where the applicant is in possession and has developed the property.

Court orders

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  1. 1.An order of injunction restraining the respondent from executing the judgment and decree of the ELC pending the hearing and determination of the appeal
  2. 2.Costs of the application to be in the appeal

The bench

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

WK
majority
JM
majority
LK
majority
On appeal from
Environment and Land Court
ELC Case No. 36 of 2022 (Murang'a)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ELC judgment in terms strictly sought

The court instead granted injunctive relief maintaining the status quo; no separate stay order issued

p. 3

Costs

The costs of the application shall be in 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.

The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
p. 2Twin principles for relief under Rule 5(2)(b)
A single bona fide arguable ground of appeal is suficient to satisfy this prerequisite.
p. 3Threshold for arguability
It is clear to us that this being a land dispute, status quo should be maintained pending the hearing and determination of the appeal.
p. 3Status quo in land disputes pending appeal
The respondent is restrained by an order of injunction from executing the judgment and decree of the ELC pending the hearing and determination of the appeal.
p. 3Final orders — injunction pending appeal

Issues in the judgment

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minor

The judgment refers to the ELC case as 'ELC Case No. 36 of 2022' but the respondent's replying affidavit references a similar application 'before the ELC in Murang’a ELC Case No. 36 of 2020'; the year discrepancy is unexplained in the judgment.

minor

The judgment is dated and delivered in 2026 ('DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026') concerning an application filed in 2022 — an unusually long interval, though not internally contradictory.

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, "Kamau & another v Ngugi (Civil Application E085 of 2022) [2026] KECA 1320 (KLR)", Case Analysis (2026). Civil Application No. E0XX of 2022 (Nyeri) — notice of motion dated 27th October, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1320/eng@2026-07-03

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