Njoroge & 2 others v Kagika & 6 others (Civil Appeal (Application) E243 of 2023) [2025] KECA 164 (KLR)
The bottom line
#Kenya's Court of Appeal paused the eviction but not the whole judgment, showing stay orders are tailored to the actual situation on the ground.
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 (first limb of Rule 5(2)(b))
- 2.Whether the appeal will be rendered nugatory if stay is not granted (second limb of Rule 5(2)(b))
Key legal issues
#Arguability of the intended appeal
The applicants' contention that fraud allegations were not proved to the heightened civil standard raised an argument deserving of interrogation, satisfying the first limb
The respondents' complaint that the applicants acquired the suit properties by fraud had been upheld by the trial court. The applicants argued the allegations were not proved to the threshold higher than balance of probabilities but lower than beyond reasonable doubt, citing Koinange. The court found this an argument deserving interrogation without deciding the merits.
Whether the appeal would be rendered nugatory
Eviction of the applicants from land they currently occupy could render the appeal nugatory; absence of evidence that titles had been cancelled justified preserving the status quo
Respondents claimed the decree had been fully executed and titles cancelled; the applicants denied this. With no evidence either way, the court held matters as at 8th May 2024. On possession, only the 3rd respondent lacked occupation of all land claimed, and evicting the applicants could disrupt the appeal's usefulness.
Possession and the limits of the stay
Stay was tailored to the actual state of possession at the time of judgment; the court would not disturb other respondents in possession
The court recorded that save for the 3rd respondent, the respondents were in possession of the land parcels when judgment was passed. It therefore confined the stay to the eviction order affecting the applicants' current occupation and the titles as at 8th May 2024.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
- On the arguability limb, the court need not engage in a detailed merits discussion lest it embarrass the bench that will hear the appeal
- Where the court lacks evidence on whether a decree has been executed, it will preserve the status quo as at the time of hearing
Court orders
#- 1.Stay of execution of the eviction order issued in favour of the 3rd respondent in respect of the land currently occupied by the applicants
- 2.The titles to the land which is the subject matter of the intended suit shall remain as they were at 8th May 2024
- 3.The above orders to remain pending the hearing and determination of the intended appeal
- 4.Costs of the application shall be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Kajiado
- ELC No. 743 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending hearing of an intended appeal)
Relief refused
#Full stay of execution of the whole judgment cancelling the impugned titles
The court limited stay to the eviction order and preservation of titles as at 8th May 2024, refusing to disturb possession of the other respondents
Costs
Costs of the application shall be in the intended appeal.
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 applicant must demonstrate an arguable appeal. An appeal which even if raising one point, and even if not eventually successful, is worthy of consideration at hearing of the appeal.
A second limb to be satisfied is that the appeal will be rendered nugatory if the say is not granted.
There shall be stay of execution of the eviction order issued in favour of the 3rd respondent in respect to the land currently occupied by the applicants.
The above orders to remain pending the hearing and determination of the intended appeal.
Costs of the application shall be in the intended appeal.
Issues in the judgment
#Typographical errors in the judgment, including 'dificulties', 'refiected', 'plaintifi', and 'say' for 'stay' in the statement of the nugatory principle
The court describes the intended suit but the subject matter of the appeal is a decided suit (ELC No. 743 of 2017); the reference to 'the subject matter of the intended suit' in the orders appears inconsistent with the intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Malivi v Mini Bakers Limited (Appeal E183 of 2022) [2025] KEELRC 526 (KLR)[2025] KEELRC 526 (KLR)24 Feb 2025
- Golden Biscuits (1985) Limited v Otieno (Appeal E228 of 2022) [2024] KEELRC 1222 (KLR)[2024] KEELRC 1222 (KLR)21 May 2024
- Fineline Industries Limited v Kanyima (Appeal E087 of 2021) [2024] KEELRC 414 (KLR)[2024] KEELRC 414 (KLR)29 Feb 2024
- Wicliffe Omondi Manyala v Rotex Suppliers and Service Limited [2022] KEELRC 204 (KLR)[2022] KEELRC 204 (KLR)18 Mar 2022applied
Cite this brief
#Cite this brief
Caselaw, "Njoroge & 2 others v Kagika & 6 others (Civil Appeal (Application) E243 of 2023) [2025] KECA 164 (KLR)", Case Analysis (2025). Civil Application No. E533 of 2024 (intended appeal from Kajiado ELC No. 743 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/164/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.