Kaunja (Suing as the legal representative of the Estate of M’ndegwa M’kithaka - Deceased) v Mburugu & 3 others (Civil Application E017 of 2025) [2026] KECA 1359 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause an eviction order because the applicant showed neither an arguable appeal nor real risk of uncompensable loss.
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 intended appeal is arguable (not frivolous)
- 2.Whether, if the stay is not granted, the intended appeal, if successful, would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
No arguable issue was demonstrated. The trial court had found the property lawfully registered to the 4th respondent with no basis to infer a customary trust, and the applicant admitted residing on a different parcel, so no bona fide point arose from the eviction order.
The Court examined the draft grounds - failure to recognise the customary trust, introduction of unpleaded issues, and ownership findings - but found the trial court's judgment detailed and its findings against the applicant. The applicant admitted residing on Abogeta/U-Kiungone/810, not the suit property, and showed no actual occupation, developments or exclusive possession, undermining the arguability claim without deciding the merits.
Whether the appeal would be rendered nugatory if stay was denied
The nugatory limb failed: there was no evidence of residence on the suit property or of developments likely to be demolished causing irreparable, uncompensable loss.
The Court applied its settled position that nugatoriness must be demonstrated by evidence and depends on each case. The record showed only cultivation of tea bushes on agricultural land registered to the 4th respondent, who had held title since 1994. Mere cultivation, without residence, structures or developments facing demolition, cannot establish loss incapable of compensation should eviction proceed before the appeal is heard.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two conditions: that the intended appeal is arguable (not frivolous) and that, unless the orders sought are granted, the appeal if successful would be rendered nugatory.
- An arguable appeal need not necessarily succeed; it is one that raises at least one bona fide point deserving of consideration by the Court.
- Whether an appeal would be rendered nugatory depends on demonstration by evidence and on the circumstances of each particular case.
Court orders
#- 1.The notice of motion dated 7th February 2025 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC case No. 38 of 2019 (Meru)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the ELC judgment and decree pending the hearing and determination of the intended appeal
The applicant failed to satisfy both limbs of the rule 5(2)(b) test: no arguable point was demonstrated, and no evidence showed the appeal would be rendered nugatory
Costs
The application was dismissed with 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.
An applicant must satisfy two limbs: first, that the intended appeal is arguable, meaning that it is not frivolous; and second, that unless the orders sought are granted, the appeal, if successful, would be rendered nugatory.
an arguable appeal is not one that must necessarily succeed, but one that raises at least one bona fide point deserving of consideration by the Court
The applicant has not placed before this court any cogent material to demonstrate actual occupation or possession of the suit property, such as residence, developments, permanent structures, or exclusive possession.
In the end, the applicant having failed to satisfy the twin principles under rule 5(2)(b) of the Rules, we find the application is devoid of merit. It is hereby dismissed with costs to the respondents.
Issues in the judgment
#The delivery date is stated as 2026, which post-dates the application of 7th February 2025 by an unusual interval and may be a typographical error for 2025.
The respondents' submissions refer to 'the High Court' although the decision under review was by the Environment and Land Court; the usage is unclear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaunja (Suing as the legal representative of the Estate of M’ndegwa M’kithaka - Deceased) v Mburugu & 3 others (Civil Application E017 of 2025) [2026] KECA 1359 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1359/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.