Ngatuny & 2 others v Mosoiko & 2 others (Civil Application E124 of 2023) [2024] KECA 1656 (KLR)
The bottom line
#Kenya's Court of Appeal blocked any sale, transfer or eviction on disputed Transmara land until a full appeal is heard, protecting occupants from irreversible loss.
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
- 2.Whether the intended appeal would be rendered nugatory if the orders of injunction sought are not granted
Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b) of the Court of Appeal Rules, 2022
The intended appeal raises bona fide arguable points, notably whether the 1st respondent's title is unimpeachable given allegations that the suit property formed part of the unprobated estate of Ateti Ole Nembo, who died in 1989.
The applicants contended that the property was fraudulently and irregularly transferred to the 1st respondent without a Certificate of Confirmation of Grant, since the original registered owner died in 1989 and no probate proceedings were undertaken. The Court held this question eminently arguable, not fanciful, applying the Kang'ethe standard that an arguable appeal need only raise a point fit to be argued fully, not one likely to succeed.
Whether the intended appeal would be rendered nugatory if the injunction is not granted
Yes. The applicants are in possession of the suit property; if evicted or if the property changes hands, the appeal would be irreversibly extinguished.
The Court found from the record, including the 1st respondent's own testimony and his pursuit of eviction orders, that he was not in possession; the applicants were. Given the claim that this is ancestral land occupied for over seventy years, the equities favoured the applicants. Eviction or an onward dealing with the registered title would pre-emptively extinguish the appeal, and the harm would not be reversible by damages.
Whether a stay or injunction can issue under Rule 5(2)(b) where the order under appeal is a negative order
Yes. Rule 5(2)(b) permits the Court to issue either a stay or an injunction; where the order appealed is negative (a dismissal), the applicant may properly invoke the injunction limb.
The 1st respondent argued that no stay can lie against a negative order, the order on appeal being the dismissal of the applicants' appeal at the ELC. The Court answered by reference to the text of the Rule, which authorises a stay of execution, an injunction or a stay of proceedings; the applicants sought an injunction, which is available irrespective of the negative character of the order under appeal.
Legal principles established
#- Under Rule 5(2)(b), the Court may grant a stay of execution or an injunction in civil proceedings where a notice of appeal has been lodged; an applicant for injunction pending appeal may invoke the injunction limb of the Rule even where the order under appeal is a negative order dismissing an appeal.
- Rule 5(2)(b) confers original jurisdiction on the Court of Appeal to preserve the substratum of an appeal pending before it; invoking it does not open an analysis akin to an appeal against the impugned decision nor a correction of trial-court discretion.
- An arguable appeal is not one with a high probability of success; it is one that raises at least a single bona fide arguable point, that is, one which is not frivolous and ought to be argued fully.
- Whether an appeal would be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, is reversible; or, if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.An order of temporary injunction restraining the 1st Respondent, his servants and/or agents from selling, charging, disposing of, evicting the applicants, entering onto, encroaching upon, trespassing onto, ploughing, cultivating, grazing on, fencing or in any manner dealing with LR NO. TRANSMARA/MOITA/488 pending the hearing and determination of the intended appeal (prayer 4 granted)
- 2.An order of inhibition directed against the title in respect of LR. NO. TRANSMARA/MOITA/488, barring any dealings and/or transactions over the said property, pending the hearing and determination of the intended appeal (prayer 6 granted)
- 3.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kilgoris
- ELC Appeal No. 7 of 2022 (arising from Kilgoris PM ELC No. 09 of 2018)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Order of maintenance of status quo (prayer 5)
The Court granted only prayers 4 and 6 of the Notice of Motion; prayer 5 was not among the orders granted
Conservatory order in the alternative (prayer 7)
The Court granted only prayers 4 and 6; the alternative conservatory order was not granted
Costs of the application and of the main appeal borne by the 1st Respondent (prayer 8)
Costs were instead made in the cause
Costs
Costs will be in the cause
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 applicants have satisfied both prongs of the test for granting stay or injunction orders under Rule 5(2)(b) of the Court of Appeal Rules, 2022. We, therefore, hereby grant the orders sought in prayers 4 and 6 in the Notice of Motion dated 5th October, 2023.
It is the only just outcome to preserve the substratum of the appeal until it is heard and determined. The costs will be in the cause.
an arguable appeal is not one with a high probability of succeeding; it is, instead, one which ought to be argued fully before the Court
this rule clothes this Court with original jurisdiction to preserve the substratum of the appeal pending before it
Under that Rule, this Court can either issue a stay or an injunction. The applicants have approached this Court for the latter.
Issues in the judgment
#The description of the ELC decision is internally inconsistent: the application is described as an appeal against a judgment dated 25th September, 2023, but the text later states the applicants filed an appeal against the whole judgment dated 10th December, 2019 (the trial judgment), which was then dismissed by the ELC on 25th September, 2023.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kitayi v Psenjen (Sued as the Personal Representative of Enock M. Psenjen (Deceased) ) & 2 others (Enviromental and Land Originating Summons E005 of 2022) [2026] KEELC 2224 (KLR)[2026] KEELC 2224 (KLR)22 Apr 2026
- Chief of the Kenya Defence Forces & another v Arigele & 18 others (Civil Application E032 of 2025) [2026] KECA 326 (KLR)[2026] KECA 326 (KLR)27 Feb 2026
- Muchui v Nairobi City County Gov’t (Environment and Planning Miscellaneous Application E011 of 2025) [2026] KEELC 350 (KLR)[2026] KEELC 350 (KLR)29 Jan 2026followed
Cite this brief
#Cite this brief
Caselaw, "Ngatuny & 2 others v Mosoiko & 2 others (Civil Application E124 of 2023) [2024] KECA 1656 (KLR)", Case Analysis (2024). Civil Application No. E124 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1656/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.