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Court of AppealDismissedCivil Application No. E126 of 2026· [2026] KECA 2070 (KLR)

Melitus Charles Nyongesa v Zakayo Waswa

Court of Appeal
25 September 2026
PNP. NyamweyaALAli-AroniRNR. Ngetich
983 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop an eviction, ruling that losing land possession temporarily can be reversed and compensated with money later.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kakamega (Nyamweya, Ali-Aroni & Ngetich, JJ.A) dismissing an application dated 4th June 2026 under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a ruling of the Environment and Land Court at Bungoma (K. Bor, J.) delivered on 11th May 2026. The ELC had issued consequential orders evicting the applicant and granting vacant possession to the respondent, in enforcement of the Court of Appeal's substantive judgment of 23rd June 2023 in KSM Civil Appeal No. 49 of 2018, which declared the respondent the lawful owner and found fraudulent acquisition of title; an application for review of that judgment was dismissed on 24th October 2025. The applicant argued that the ELC exceeded its jurisdiction because the original judgment did not pronounce on eviction and vacant possession, and that title is not synonymous with possession. The respondent countered that the 26-year dispute was conclusively determined, that possession follows title under Section 24 of the Land Registration Act, and that the applicant was approbating and reprobating. Applying the Kang'ethe Kinyanjui twin test, the Court accepted that the jurisdictional point was arguable, satisfying the first limb. However, the nugatory limb failed: land is a stable, non-dissipatable asset, eviction is inherently reversible, and any quantifiable loss is compensable in damages, balanced against the respondent's right to enjoy the fruits of judgment. The application was dismissed with costs to the respondent.

Key legal issues

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01

Arguability of the intended appeal

Holding

The contention that the Court of Appeal's original judgment did not pronounce itself on vacant possession is an arguable point of law, satisfying the first limb.

Reasoning

The Court applied the Kang'ethe Kinyanjui principles without making definitive findings on the merits or on the correctness of the ELC's interpretation of Section 24 of the Land Registration Act, accepting only that the jurisdictional point raised a bona fide arguable issue of law.

p. 5
02

Nugatory aspect of the stay application

Holding

The nugatory limb failed because land is a stable asset, eviction is reversible, and any loss is compensable in damages.

Reasoning

Relying on Reliance Bank v Norlake Investments and Mohamed Salim t/a Choice Butchery, the Court held that if the intended appeal succeeds the applicant can be restored to possession, and the successful party's right to enjoy the fruits of judgment must be balanced against the applicant's right of appeal.

p. 7

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted.
  • An arguable appeal need only raise a single bona fide point and must not be frivolous.
  • The nugatory test turns on whether what is sought to be stayed is reversible, or whether damages would reasonably compensate the aggrieved party.

Court orders

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  1. 1.The application dated 4th June 2026 for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Environment and Land Court at Bungoma
Bungoma ELC No. 43 of 2001
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Melitus Charles Nyongesa v Zakayo Waswa", Case Analysis (2026). Civil Application No. E126 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2070/eng@2026-09-25

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