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Court of AppealAllowedCivil Application E268 of 2024

Njiru & another v Kyambi (Suing as the Administrator and Legal Representative of the Estate of the Late Mueke Kyambi alias Lydiah Mueke Kiambi (Deceased)) & 5 others

Court of Appeal
20 December 2024
2,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped an eviction, ruling that a school on the disputed land could not be compensated with money if the appeal later succeeded.

What this practically means

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Executive summary

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The applicants, Nelson Nyaga Njiru and Dorothy Mukami Munyi, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules 2022 seeking stay of execution of the judgment and decree of Mogeni, J of the Environment and Land Court at Nairobi delivered on 26 October 2023 in ELC Case No. E411 of 2021, which declared the transfer of the suit property to the 2nd respondent and its subsequent sub-division fraudulent, illegal, null and void. The 1st respondent opposed, arguing the motion was filed some seven months after judgment without explanation and that the intended appeal was frivolous because the applicants had admitted failing to carry out due diligence and had no sale agreement. Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Ketter, the court found a single bona fide arguable ground on bona fide purchaser status and proof of fraud. On the nugatory limb, the court noted the applicants had been in uninterrupted possession since August 2008 and had built a school with over 400 pupils, while the 1st respondent had never been in occupation; eviction could not be compensated by damages. Both limbs satisfied, the court allowed the motion and stayed execution pending the hearing and determination of the appeal, with costs of the motion to abide the outcome of the intended appeal. The ruling is a single judgment of a three-judge bench and binds subordinate courts on the Rule 5(2)(b) principles it restates.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have an arguable appeal under the first limb of Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory unless stay of execution is granted under the second limb of Rule 5(2)(b)

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants had an arguable appeal on the bona fide purchaser and fraud grounds.

Reasoning

The court examined the memorandum of appeal and found that the grounds on whether the applicants were bona fide purchasers for value without notice and whether fraud was proved against them were not frivolous and deserved full consideration. The court deliberately refrained from making definitive findings to avoid embarrassing the bench ultimately seized of the appeal.

02

Whether the appeal would be rendered nugatory

Holding

Eviction of the applicants, in possession since 2008 with a school of over 400 pupils, could not be compensated by damages, satisfying the nugatory limb.

Reasoning

The 1st respondent had never been in occupation of the suit property, while the applicants had been in possession since August 2008, a fact not controverted, and had built a school with over 400 pupils. Eviction would have serious ramifications on the learners and the loss could not be adequately compensated by damages.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory-ness limbs before stay can be granted.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous.
  • An appeal may be rendered nugatory where what is sought to be stayed is irreversible and not compensable by damages.

Court orders

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  1. 1.Stay of execution of the judgment and decree delivered by Mogeni, J in Nairobi ELC Suit No. E411 of 2021 on 26th October 2023, pending the hearing and determination of the appeal
  2. 2.Costs of the motion to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment & Land Court at Nairobi
Nairobi ELC Case No. E411 of 2021
Jurisdiction invoked
Sections 3 & 3A of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, and the applicants having satised both limbs that an applicant has to satisfy in an application of this nature, the applicants motion dated 15th April 2024, is merited and we accordingly allow the same and stay the execution of the judgment and decree delivered by Mogeni, J in Nairobi ELC suit No. E411 of 2021, on 26th October 2023, pending the hearing and determination of the appeal herein.
p. 5Final orders - stay of execution granted
The costs of this motion shall abide the outcome of the intended appeal.
p. 5Costs order
On whether the appeal is arguable, it is sucient if a single bona de arguable ground of appeal is raised.
p. 4Rule 5(2)(b) - arguability threshold
In considering an application brought under Rule 5(2) (b), the Court must not make denitive or nal ndings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.
p. 4Restraint at interlocutory stage

Issues in the judgment

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minor

Duplicate paragraph numbering: paragraph 27 appears twice, once for the stay order and once for the costs order.

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, "Njiru & another v Kyambi (Suing as the Administrator and Legal Representative of the Estate of the Late Mueke Kyambi alias Lydiah Mueke Kiambi (Deceased)) & 5 others", Case Analysis (2024). Civil Application E268 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1949/eng@2024-12-20

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