Kiu (Suing as the Legal Representative of the Estate of Daniel Talengo Kiptunen) v Kantim (Suing as the Legal Representative of the Estate of Ntopia Noonkuta Masitoi)

3. Consequent upon that nding, the learned Judge ordered the relevant surveyor to amalgamate the two parcels. The Land Registrar was directed to cancel the title to parcel No. 300 and issue one title for the amalgamated property in the respondent's name. The respondent was thereafter required to subdivide the amalgamated property and transfer ten acres to the applicant, regard being had to the portion already occupied by her. 4. The applicant is aggrieved by that determination and has lodged a notice of appeal. She contends that parcels Nos. 109 and 300 are separate parcels which were separately acquired; that the learned Judge failed to properly evaluate the evidence relating to their acquisition and ownership; and that she and her predecessor in title have been in possession of the disputed property for several decades. 5. In her supporting adavit, the applicant further contends that the intended appeal raises substantial questions concerning the trial court's ndings on fraud, illegality, ownership and the identity of the respective parcels. She apprehends that, unless the property is preserved, implementation of the decree will result in cancellation of the existing title, amalgamation, transfer and subsequent subdivision before this Court determines whether those very steps were legally justied. 6. The respondent opposes the application. She contends that the intended appeal is not arguable and that, in any event, it cannot be rendered nugatory. Her position is that the impugned judgment does not order the applicant's eviction. On the contrary, it preserves an entitlement of ten acres in favour of the applicant. She further argues that any alterations to the register are capable of reversal should the intended appeal ultimately succeed. Submissions 7. The application was canvassed by written submissions supplemented by brief oral highlights. The applicant's submissions are dated 2nd July 2026, while those of the respondent are dated 10th July 2026. 8. Mr. Ogola, learned counsel for the applicant, submitted that the intended appeal is arguable because it raises, among other questions, whether parcels Nos. Transmara/Ololchani/109 and Transmara/ Ololchani/300 constitute one and the same property or are separate parcels, and whether the respondent made material admissions concerning her claim over parcel No. 300. 9. Counsel submitted that implementation of the decree before the intended appeal is determined would fundamentally alter the character and registration status of the property. Parcel No. 300 would be cancelled as a separate title, amalgamated with parcel No. 109 and registered in the respondent's name, after which further subdivision would take place. In counsel's submission, preservation of the existing position is necessary to ensure that the intended appeal, if successful, remains eective. 10. Mr. Nanda, learned counsel for the respondent, submitted that there is no threat of eviction because the decree requires ten acres to be transferred to the applicant with due regard to the portion she presently occupies. He maintained that rectication of the register and amalgamation are reversible processes and cannot therefore render the appeal nugatory. Counsel relied upon Stanley Kang'ethe Kinyanjui vs. Tony Ketter & 5 Others// [2013] eKLR and urged us to dismiss the application. Determination 11. The principles governing an application under rule 5(2)(b) are settled. An applicant must demonstrate, rst, that the appeal or intended appeal is arguable and, secondly, that unless the orders sought are granted, the appeal, if ultimately successful, will be rendered nugatory. The two limbs are conjunctive and must both be satised. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1897/eng@2026-09-25 2

page 2 of 5

12. An arguable appeal is not one which must necessarily succeed. It is sucient that it raises at least one bona de point deserving consideration by this Court. Nor is this the stage at which the Court determines the merits of the proposed grounds conclusively. To do so would risk prejudging matters reserved for the bench that will hear the substantive appeal. 13. In Stanley Kang'ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR, this Court restated both the dual requirements under rule 5(2)(b) and the principle that an arguable appeal is not one which must succeed, but one which ought to be argued fully before the Court. 14. The applicant proposes to challenge the learned Judge's nding that parcel No. Transmara/ Ololchani/300 forms part of parcel No. Transmara/Ololchani/109. She also proposes to challenge the treatment of the evidence relating to the creation and acquisition of the two parcels, the ndings on fraud and illegality, and the eect of the respondent's alleged evidence concerning parcel No. 300. 15. Whether the evidential record justied treating two separately numbered and registered parcels as constituting one property, and whether the consequential cancellation and amalgamation orders were properly founded, are not matters that can fairly be described as frivolous. 16. We are therefore satised that the intended appeal is arguable. We reiterate that this conclusion says nothing about whether those grounds will ultimately succeed. 17. The more contested question is whether the intended appeal would be rendered nugatory if the orders sought are declined. 18. In considering that question, the Court is concerned with the practical consequences likely to follow before the appeal is determined. The question is whether those consequences would substantially diminish or destroy the ecacy of a successful appeal. 19. The impugned decree does considerably more than declare the respective rights of the parties. It sets in motion a sequence of positive steps aecting the legal status and identity of the property. It declares that parcel No. 300 forms part of parcel No. 109; directs amalgamation of the two parcels; directs cancellation of the title to parcel No. 300; requires issuance of a single title over the amalgamated property in the respondent's name; and thereafter requires subdivision and transfer of ten acres to the applicant. 20. The intended appeal challenges the foundation upon which that sequence rests. Central to it is the contention that parcels Nos. 109 and 300 are separate parcels with separate histories of acquisition and ownership. 21. In those circumstances, allowing parcel No. 300 to be cancelled and legally absorbed into parcel No. 109 before this Court determines whether it was properly found to form part of parcel No. 109 would permit execution of the very determination which constitutes a central subject of the intended appeal. 22. We have considered the respondent's submission that those steps are reversible. It is true that reversibility is an important consideration in determining the nugatory aspect. It is equally true that the Court does not issue orders under rule 5(2)(b) merely because execution may cause inconvenience. 23. However, reversibility is not considered in the abstract. The Court must examine the nature of the subject matter, the extent of the proposed alteration, the intervening transactions that may occur and whether preservation is reasonably necessary to ensure that the appellate process remains meaningful. 24. Here, implementation entails cancellation of an existing title, amalgamation of two registered parcels, creation of another title, registration of that title in the respondent's name and a further process of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1897/eng@2026-09-25 3

page 3 of 5

subdivision. Each successive step moves the property further away from the registration position which forms the subject of the intended appeal. 25. The fact that rectication of a register may legally be possible does not necessarily mean that the appeal cannot be rendered nugatory. Once cancellation, amalgamation, registration and further subdivision occur, restoration of the previous proprietary conguration may involve further survey and registration processes and may potentially implicate subsequent dealings. 26. We are particularly mindful that the dispute concerns immovable property whose identity and registration are themselves contested. In such circumstances, preservation of the subject matter pending appeal may be preferable to permitting successive alterations and subsequently attempting to reconstruct the position should the appeal succeed. 27. The respondent places considerable emphasis on the fact that the decree does not expressly order the applicant's eviction. We agree that this diminishes the applicant's apprehension of immediate physical dispossession. It does not, however, answer the entire nugatory inquiry. 28. The substratum of the intended appeal is not conned to physical occupation. It encompasses the separate juridical existence, registration and ownership of parcel No. Transmara/Ololchani/300. The decree directly alters each of those matters. 29. Put dierently, even if the applicant remains physically on ten acres, the implementation of the decree would extinguish parcel No. 300 as a separate registered parcel before this Court has determined the applicant's contention that it ought to remain precisely that. Physical occupation and preservation of the legal character of the subject matter are distinct considerations. 30. Neither do we consider it necessary for the applicant to demonstrate that the respondent has already transferred the property to a third party. The jurisdiction under rule 5(2)(b) is preservatory. The Court need not wait until the apprehended alteration has occurred if the evidence demonstrates that execution of the decree itself authorizes the relevant steps. 31. There is an additional consideration. The orders sought are temporary. Their eect is not to confer ownership upon the applicant or to reverse the judgment of the Environment and Land Court. They merely preserve the existing position until the competing claims have been nally considered on appeal. 32. We must balance that temporary restraint against the consequences of refusing relief. If stay is granted and the appeal ultimately fails, implementation of the decree will have been delayed. If stay is refused and the decree is fully implemented, the titles will have been cancelled, amalgamated, re-registered and subjected to further subdivision before the legality of those steps is nally determined. 33. In our view, the latter course carries the greater risk of undermining the ecacy of the appellate process. Preservation, in the peculiar circumstances of this dispute, better serves the interests of justice. 34. We are accordingly satised that the applicant has demonstrated that the intended appeal may be rendered nugatory unless appropriate preservatory orders are made. The second limb has therefore also been satised. 35. Having found that the intended appeal is arguable and that its ecacy may be compromised by implementation of the impugned decree, the applicant has satised the twin requirements for the exercise of this Court's jurisdiction under rule 5(2)(b). Orders 36. Accordingly, the Notice of Motion dated 17th June 2026 succeeds. We make the following orders: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1897/eng@2026-09-25 4

page 4 of 5

a. There shall be a stay of execution of the judgment and consequential decree of the Environment and Land Court at Kilgoris (M. N. Manyala, J.) dated 11th June 2026 in Kilgoris ELC Civil Suit No. 2 of 2021, pending the hearing and determination of the intended appeal. b. Pending the hearing and determination of the intended appeal, the status quo relating to the registration, possession and occupation of land parcels Nos. Transmara/Ololchani/ 109 and Transmara/ Ololchani/ 300 obtaining as at the date of this ruling shall be maintained. c. For the avoidance of doubt, neither party shall sell, transfer, charge, subdivide, amalgamate, alienate or otherwise create any third-party interest over the two parcels pending determination of the intended appeal. d. The applicant shall take all necessary steps to institute and prosecute the intended appeal expeditiously and in accordance with the Court of Appeal Rules. e. The costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO .................................. JUDGE OF APPEAL MURUNGI B. KAIRARIA .................................. JUDGE OF APPEAL AHMED ISSACK ................................. JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR Page 1 of 13 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1897/eng@2026-09-25 5

page 5 of 5