Matifari v Mung’au & 5 others
The bottom line
#The Court of Appeal refused to halt eviction because the applicant never showed his planned appeal had any real, arguable grounds.
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 under the first limb of Rule 5(2)(b)
- 2.Whether, if the stay is not granted, the success of the intended appeal would be rendered nugatory under the second limb
Key legal issues
#Whether the intended appeal was arguable
It was not; the applicant annexed no draft memorandum of appeal and articulated no specific grounds, merely asserting the appeal had high chances of success.
The applicant deposed only that he intended to appeal against the entire judgment and believed it had high chances of success. No draft memorandum was annexed and no specific grounds were articulated. Counsel's allusion to fraud in submissions was unsupported by particulars in the application. A prior 2007 judgment of the same Court dismissing the applicant's claim to the same land further cast doubt on any viable arguable issue.
Whether the appeal would be rendered nugatory absent stay
It would not; substantial loss from eviction is distinct from nugatory-ness, and damages could compensate any loss.
Although the applicant claimed occupation for over 20 years and imminent eviction rendering his family destitute, the Court reiterated that substantial loss is a different test from nugatory-ness under Rule 5(2)(b). The respondents also pointed to the applicant's lack of legal interest per the 2007 judgment and prior sales of parts of the land. The Court found damages could compensate any loss, so the appeal would not be rendered worthless.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: that the intended appeal is arguable and that it would be rendered nugatory absent the order sought.
- Once the Court concludes an intended appeal is not arguable, it need not consider the nugatory limb.
- Substantial loss under Order 42 Rule 6 is distinct from the nugatory-ness test under Rule 5(2)(b).
- An arguable appeal need not necessarily succeed; it need only raise at least one bona fide point deserving consideration.
Court orders
#- 1.The Notice of Motion dated 11th April 2025 is dismissed with costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Bungoma
- Bungoma ELC Case No. 101 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of eviction orders pending the intended appeal
Applicant failed to satisfy either of the twin principles under Rule 5(2)(b): the intended appeal was not shown to be arguable, and nugatory-ness was not demonstrated
Costs
The Notice of Motion dated 11th April 2025 is hereby 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.
The Notice of Motion dated 11th April 2025 is hereby dismissed with costs to the Respondents.
In the result, we find that the Applicant has failed to satisfy either of the twin principles required for the grant of relief under Rule 5(2)(b) of the Court of Appeal Rules.
It is incumbent upon an applicant to place before the Court sufficient material to show that the intended appeal raises substantive issues of law or fact.
It is now settled that the question whether an appeal would be rendered nugatory is distinct from the issue of substantial loss.
Issues in the judgment
#Coram lists 'S RADIDO' but the signature block reads 'RADIDO S. OKIYO', an inconsistent rendering of the same judge's name.
The application is dated 11th April 2025 but the ruling header describes it as an application for stay pending appeal; the intended appeal appears not yet filed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matifari v Mung’au & 5 others", Case Analysis (2026). Civil Appeal E003 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2060/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.