Matifari v Mung’au & 5 others

the delay in ling the present application to the exit of his previous counsel. He contends that the intended appeal is arguable, particularly on the issue of alleged fraud, and that unless stay is granted, the execution of the eviction orders will render him and his family destitute, thereby rendering the intended appeal nugatory. 3. In response, the 3rd Respondent led a replying adavit sworn on 24th April 2025. It is contended therein that the application is inordinately delayed, having been led more than a year after the judgment, and that no satisfactory explanation has been oered. It is also argued that the applicant has failed to demonstrate that the intended appeal is arguable, noting in particular the absence of a draft memorandum of appeal. The Respondents also rely on a previous decision of this Court in Kisumu Civil Appeal No. 351 of 2002, delivered in 2007, in which the Applicant’s claim to the suit land was dismissed. 4. During the hearing of the application, learned counsels for the parties, Ms. Masengeli for the Applicant and Mr. Anwar for the Respondent, relied on their respective adavits and written submissions. 5. The jurisdiction of this Court under Rule 5(2)(b) of the Court of Appeal Rules is well settled. An applicant must satisfy the Court on two limbs: rst, that the intended appeal is arguable; and second, that unless the order sought is granted, the success of the appeal, if ultimately successful, would be rendered nugatory. 6. These principles were succinctly articulated in the case of Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR, where the Court stated: “ In dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the trial judge’s discretion. The Court exercises unfettered discretion which must be exercised judicially. The applicant must satisfy the Court on both limbs, namely, that the appeal or intended appeal is arguable, that is, it is not frivolous; and that unless the order sought is granted, the appeal or intended appeal, if successful, would be rendered nugatory.” 7. Guided by these principles, we have considered the material placed before us and the applicable law, to determine whether the Applicant has satised the twin requirements. 8. On the rst limb, whether the intended appeal is arguable, an arguable appeal is not one that must necessarily succeed, but one that raises at least a single bona de point deserving consideration by the Court. 9. In the present case, the applicant merely deposes that he intends to appeal against the entire judgment and believes that the appeal has high chances of success. No draft memorandum of appeal was annexed, nor were any specic grounds of appeal articulated in the supporting adavit. Although counsel alluded to the issue of fraud during submissions, no particulars of such fraud or its legal basis were set out in the application. 10. While the Court is alive to the practical challenges that may arise in obtaining proceedings, that cannot excuse the failure to demonstrate, even in summary form, the arguable grounds intended to be pursued on appeal. It is incumbent upon an applicant to place before the Court sucient material to show that the intended appeal raises substantive issues of law or fact. 11. Further, the Respondents have exhibited a prior judgment of this Court delivered in 2007 involving the same applicant and the predecessor in title to the suit property, in which the applicant’s claim was dismissed. That decision casts doubt on the existence of any viable arguable issue in the intended appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2060/eng@2026-05-22 2

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12. In the circumstances, we are not persuaded that the applicant has demonstrated that the intended appeal is arguable. As was stated by this Court in M’big Limited vs. BAT Kenya Tobacco Company Limited [2025] KECA 196 (KLR): “ Once this Court has come to the conclusion that an appeal or intended appeal is not arguable, it need not consider the second limb.” 13. Notwithstanding that nding, we briey address the second limb on whether the appeal would be rendered nugatory. The applicant contends that eviction from the suit land, which he claims to have occupied for over 20 years, would render the intended appeal nugatory. 14. The Applicant argues that he and his family are currently in physical occupation of the suit land. He deposes that he purchased the land in 1991 and has resided there continuously with his wife and children for over 20 years. He submits that the suit land is their only known home. 15. Ms. Masengeli, submitted that the execution of the eviction orders is imminent. She argued that if the eviction is carried out, the Applicant and his family will be rendered homeless, destitute, and without a roof over their heads. The Applicant argues that loss is not merely substantial but renders the intended appeal nugatory. The submission is that eviction is an irreversible act; once the Applicant and his family are removed from the only home they have known for two decades, the status quo cannot be restored even if the appeal succeeds later. 16. The Respondents, on the other hand, argued that the Applicant cannot claim substantial loss over property in which he has no legal interest, as established by the 2007 judgment of this Court. They further contended that the Applicant has previously sold parts of the land to third parties, thereby deriving nancial benet and negating the claim of total destitution. 17. We have carefully considered the Applicant’s arguments regarding the potential loss of his home. However, we must reiterate the distinction between the jurisdiction of the High Court under Order 42 Rule 6 and this Court under Rule 5(2)(b). 18. It is now settled that the question whether an appeal would be rendered nugatory is distinct from the issue of substantial loss. As this Court observed in M’big Limited vs. BAT Kenya Tobacco Company Limited (supra): “ The applicant only argued that it would suer substantial loss, which is dierent from an appeal being rendered nugatory.” 19. From the foregoing, damages may compensate any loss occasioned, and the appeal, if successful, would not thereby be rendered worthless. 20. Additionally, the Applicant did not annex the judgment or the specic orders sought to be stayed, thereby limiting the Court’s ability to assess the nature and eect of the impugned orders fully. While not necessarily fatal, this omission further weakens the application. 21. In the result, we nd 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. 22. The Notice of Motion dated 11th April 2025 is hereby dismissed with costs to the Respondents. DATED AND DELIVERED AT KAKAMEGA ON THIS 22ND DAY OF MAY, 2026. P. NYAMWEYA https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2060/eng@2026-05-22 3

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JUDGE OF APPEAL ................................... R. NGETICH JUDGE OF APPEAL ................................... RADIDO S. OKIYO JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2060/eng@2026-05-22 4

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