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Court of AppealPartially AllowedCivil Application No. E533 of 2024 (intended appeal from Kajiado ELC No. 743 of 2017)

Njoroge & 2 others v Kagika & 6 others (Civil Appeal (Application) E243 of 2023) [2025] KECA 164 (KLR)

Court of Appeal of Kenya
7 February 2025
1,128 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 paused the eviction but not the whole judgment, showing stay orders are tailored to the actual situation on the ground.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kairu, Tuiyott and Gachoka, JJA) on a notice of motion dated 25th January 2024 seeking stay of execution of a judgment of M.N. Gicheru, J delivered on 2nd November 2022 in Kajiado ELC No. 743 of 2017. That judgment cancelled three titles (Ngong/Ngong/59355, 59356 and 59372) as irregular subdivisions of LR. Ngong/Ngong/48197 and ordered the eviction of the applicants from land encroaching on the 3rd respondent's parcel. The applicants, who intend to appeal, argued the appeal was arguable and would be rendered nugatory if stay was refused, citing the commencement of execution, including applications for cancellation of titles and re-survey, and destruction of fencing and crops. Applying the settled Rule 5(2)(b) principles, the court found the first limb satisfied: the applicants' contention that the fraud allegations were not proved to the heightened civil standard, supported by the Koinange decision cited by counsel, deserved interrogation at the hearing of the appeal. On the nugatory limb, the court noted conflicting affidavits on whether the titles had in fact been cancelled and, absent evidence, preserved matters as at its status quo order of 8th May 2024. Because the other respondents were in possession when judgment was passed, the court tailored relief: stay of the eviction order in favour of the 3rd respondent in respect of land currently occupied by the applicants, and preservation of the titles as at 8th May 2024, pending the intended appeal, with costs in the appeal. The judgment of the trial court was not reviewed.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable (first limb of Rule 5(2)(b))
  2. 2.Whether the appeal will be rendered nugatory if stay is not granted (second limb of Rule 5(2)(b))

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants' contention that fraud allegations were not proved to the heightened civil standard raised an argument deserving of interrogation, satisfying the first limb

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

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

Reasoning

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.

p. 3
03

Possession and the limits of the stay

Holding

Stay was tailored to the actual state of possession at the time of judgment; the court would not disturb other respondents in possession

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.The above orders to remain pending the hearing and determination of the intended appeal
  4. 4.Costs of the application shall be in 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 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

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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

p. 3

Costs

Costs of the application shall be in the intended appeal.

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.

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.
p. 2Rule 5(2)(b) - arguability limb
A second limb to be satisfied is that the appeal will be rendered nugatory if the say is not granted.
p. 2Rule 5(2)(b) - nugatory limb
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.
p. 3Final orders - stay of eviction
The above orders to remain pending the hearing and determination of the intended appeal.
p. 3Final orders - duration of stay
Costs of the application shall be in the intended appeal.
p. 3Final orders - costs

Issues in the judgment

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minor

Typographical errors in the judgment, including 'dificulties', 'refiected', 'plaintifi', and 'say' for 'stay' in the statement of the nugatory principle

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.