Ntarangwi (Suing as the legal representative of the Estate of the Late Robert Ringera M'Kiriinya alias Ntarangwi) v M'Tuerandu & 8 others

RULING 1. Before the court is a notice of motion 10th July, 2023. It is brought under Rule 5(2)(b) of the rules of this Court. The applicant seeks, inter alia, an order of injunction, to restrain the respondents from entering land parcel No. Kiirua/Ruiru/827 (hereinafter ‘suit property’), or interfering with the applicant’s possession thereof, pending hearing and determination of his intended appeal against the judgment of the Environment and Land Court (ELC) Meru (Yano J.), delivered on 21st June 2023, in ELC Case No. E027 of 2021. 2. The application is supported by grounds on its body and a supporting adavit sworn by the applicant on 10th July, 2023, together with annexures thereto. The applicant avers that the suit property belonged to his late father, and that he has lived on the property since the 1970s, when his late father purchased the same. He deposes that he faces imminent danger of eviction from the suit property, if the order sought is not granted. He asserts that following the dismissal of his suit by the trial court, the respondents have embarked on a wanton destruction of his property, located on the suit property, and he stands to suer substantial loss, if this court does not intervene. He contends that his intended appeal is arguable, and shall be rendered nugatory, if injunctive orders sought are not granted. 3. In opposition to the application, the 1st and 2nd respondents each led a replying adavit sworn by themselves on 13th September, 2023. The 1st and 2nd respondents aver that their late husband, Mutwerandu Muraga, is the registered proprietor of the suit property, and that the respondents have always had possession of the property, and are in occupation of the same. They contend that the trial court dismissed the applicant’s claim on the suit property by way of adverse possession, as the applicant failed to establish that he was in occupation or use of the suit property. They urge that the applicant’s allegations that the respondents have invaded the suit property are untrue, as they have always been in possession of the suit property. They deponed that the applicant has no arguable appeal, and that his intended appeal, if successful, would not be rendered nugatory if the orders sought are not granted. For these reasons, they urge the court to dismiss the application for lack of merit. 4. The background of the application is that the applicant instituted the suit against the respondents before the ELC, claiming ownership of the suit property, by way of adverse possession. He instituted the suit in his capacity as the legal representative of his deceased father’s estate. It was the applicant’s case that his late father bought the suit property from Mutwerandu Muraga (the 1st and 2nd respondents’ late husband) in early 1970s, and that he enjoyed open, exclusive and uninterrupted possession thereof, till his demise. He averred that unfortunately, the registered owner of the suit property died before he transferred title of the suit property to his late father. The applicant contended that he and his siblings continued to occupy the suit property even after the death of their father, and that they had extensively developed the same. The applicant deponed that the respondents began laying claim to the suit property, which prompted the applicant to institute the suit before the ELC. He asked ELC to grant the necessary orders to have the title of the suit property registered in his name. 5. In response, the 1st and 2nd respondents led a statement of defence dated 19th April 2022, as well as replying adavits dated 2nd December, 2021. The respondents’ case was that the suit property was registered to their late husband, Mutwerandu Muraga, and that they have always been in occupation of the same. The respondents contended that the applicant’s late father lived on land parcel No. Kiirua/ Ruiru/1315, which he purchased from their late husband, and that he had illegally encroached on a quarter acre of the suit property, which borders parcel No. Kiirua/Ruiru/1315. The respondents https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1708/eng@2026-09-25 2

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urged that the applicant has never had possession of the suit property, and was trying to use the court to perpetuate an illegality, by claiming ownership of the suit property. 6. The Superior court, after hearing the parties, dismissed the applicant’s claim to the suit property by way of adverse possession, vide its judgment delivered on 21st June, 2023. Aggrieved by the said judgment of the superior court, the applicant lodged a notice of appeal dated 22nd June, 2023, intending to appeal against the entire decision of the ELC. The applicant further led the instant application seeking injunctive orders pending hearing and determination of his intended appeal. 7. The application was canvassed by way of written submissions, duly led by the applicant, through his counsel, Mr. Ringera. The 1st and 2nd respondents did not le written submissions, and elected to rely on the averments in their replying adavits. It was Mr. Ringera’s submission that the applicant’s draft memorandum of appeal raised arguable points. He stated that there was evidence of record that the applicant’s father purchased the suit property, and that the applicant has been in possession of the same, during and after his father’s lifetime, for more that the statutory period of twelve years. Counsel argued that the trial court, during trial, issued orders for maintenance of prevailing status quo. He asserted that after delivery of judgment, the respondents made attempts to evict the applicant from the suit property. He was of the view that unless the orders sought are granted, the applicant will be evicted from the suit property, and that he stands the risk of losing his home. Counsel cited the cases of Teresia Mwakithi v. Jema Karimi [2020] eKLR and John Joel Kanyali vs Fidelity Commercial Bank Ltd [2012] eKLR in support of the application. 8. We have considered the application, the grounds in support thereof, the replying adavits, the applicant’s submissions, the authorities cited and the law. The principles for granting an order for stay of execution under Rule 5(2)(b) of this Court’s Rules are well settled. This Court in the case of Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR delineated the jurisdiction of this Court in such an application as follows: “ 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 rstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 9. Similarly, in George Ole Sangui & 12 others v Kedong Ranch Limited [2015] eKLR, this court observed as follows: “ As stated by this Court in Peter Gathecha Gachiri v AG and 4 Others (Civil Appl. NAI 24 of 2014 (unreported)) with regard to the principles that govern grant of orders under rule 5(2)(b) of the Rules of the Court: “ Rule 5(2)(b) of the Rules of this Court on which the application is premised confers on us independent discretionary jurisdiction exercisable in accordance with the twin principles, namely, that the appeal must be shown to be arguable and, in addition, that the appeal, if successful, shall be rendered nugatory if stay is not granted. These principles have been developed by the court as a guide in the exercise of its discretionary power in determining an application premised on Rule 5(2)(b). The rationale in these principles is intended to balance two parallel propositions; rst, that a successful litigant should not be deprived of the fruits of a judgment in his favour without just cause and; secondly that a litigant who is https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1708/eng@2026-09-25 3

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aggrieved by a decision must not be deprived of the right to challenge it in the next higher court (see Butt v Rent Restriction Tribunal [1982] KLR 417. See also Kenya Shell Ltd v. Kibiru & Another [1986] KLR 410. It is imperative for an applicant seeking an order under Rule 5(2)(b) to satisfy the Court on both principles. An applicant must show that the appeal is not frivolous, that it is arguable. It is now settled that an applicant need not demonstrate a plethora of arguable points. It is sucient even if there be a solitary arguable point. An applicant must further show that the appeal, if successful, will be rendered futile if stay is not granted’.” 10. On the rst principle of whether the appeal is arguable, this Court in R.F.S. v J.D.S. [2013] eKLR observed thus: “ Now an appeal is said to be arguable when it contains grounds, points or issues that can genuinely be asserted, on which there can be divergent legal or factual positions of some merit worthy of juridical investigation and determination. To succeed, it is enough that even a single, solitary ground of such description exists and the same need not be one that must necessarily succeed an appeal.” 11. Applying the above threshold to the applicant’s grounds, and being mindful not prejudice the bench that will hear the intended appeal, we are of the view that the grounds of appeal set out in the draft memorandum of appeal annexed to the application are arguable. The applicant contends that the trial court misapprehended the law on adverse possession, and disregarded the evidence on record, in determining the suit. Those are not ippant issues. An arguable ground is not necessarily one that must succeed, but merely one that is deserving of consideration by the court. 12. Turning to the second principle, will the intended appeal, if successful, be rendered nugatory if we decline to issue the orders sought? The position in law is that this depends on whether or not what is sought to be stayed or injuncted, if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved. See the case of Reliance Bank Ltd v. Norlake Investments Ltd [2002] 1 EA 227. 13. It’s the applicant’s case that he faces the threat of being evicted from the suit property, if the order sought is not granted. The respondents, on the other hand, contend that the applicant is not in possession or occupation of the suit property, but rather in possession and occupation of the plot No. 1315, which borders the suit property. The title documents on record show that the suit property is registered to the 1st and 2nd respondent’s late husband, while plot No. 1315 is registered to the applicant’s late father. The applicant has not provided any material to demonstrate that his appeal would be rendered nugatory if the orders of injunction sought are not granted. It is our considered view that damages may be part of the remedy matrix, if the applicant’s appeal ultimately succeeds. 14. From the foregoing, and having considered the interests of both parties, it is our nding that the instant application, though arguable, will not be rendered nugatory, if the orders of injunction sought is not granted. The position in law is that both prerequisites must be satised before a party can be granted relief under Rule 5(2)(b) of the Court of Appeal Rules. Since only one prerequisite has been satised, the application is unsustainable. 15. The upshot therefore is that the applicant’s notice of motion lacks merit and is dismissed with costs to the respondents. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1708/eng@2026-09-25 4

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DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ............................... JUDGE OF APPEAL L. KIMARU ................................ JUDGE OF APPEAL A.O. MUCHELULE .......................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1708/eng@2026-09-25 5

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