Kikumu v Nthiga & 6 others (Civil Application E041 of 2024) [2025] KECA 169 (KLR)
The bottom line
#The Court of Appeal refused to stop enforcement of an Embu land ruling because a dismissal orders nothing to be executed, so there is nothing to stay.
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 stay of execution of the ELC judgment is not granted
Key legal issues
#Whether the intended appeal is arguable
The court found the draft grounds of appeal arguable, holding that an arguable point is one requiring full consideration, not one that will necessarily succeed.
The draft Memorandum of Appeal proposed to argue that the Judge erred in law and fact in finding the applicant had not proved her case where evidence showed the transfer was effected by a person without legal capacity, and in dismissing the suit without considering its merits. The court held these were not idle grounds but arguable, citing Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd.
Whether the appeal would be rendered nugatory absent stay
The nugatory test failed because the ELC judgment was a dismissal, a negative order incapable of execution, and the title to the suit land had long ceased to exist.
The court observed that the suit land had been transferred many years earlier, subdivided and the resultant parcels transferred to others, so the original title no longer existed. More decisively, the ELC Judge had dismissed the applicant's suit, granting no executable relief; a negative order cannot be executed, hence there is nothing to stay and the appeal cannot be rendered nugatory.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate that the appeal or intended appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay
- An arguable point on appeal is not one which will succeed; it is one that requires full consideration and determination by the Court
- A dismissal of a suit is a negative order that is not capable of execution, so there is nothing to stay
Court orders
#- 1.The Motion seeking stay of enforcement and execution of the ELC judgment and decree is dismissed
- 2.No order on costs as the respondents did not attend the hearing of the Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Embu Environment and Land Court
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of enforcement and execution of the judgment and decree of the Embu ELC delivered on 11th March, 2024, pending appeal
The applicant failed to demonstrate that the intended appeal would be rendered nugatory; the ELC judgment was a negative order (dismissal) not capable of execution
Costs
The Motion is dismissed with no order on costs as the respondents did not attend the hearing of the Motion.
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.
For an applicant to succeed he must, firstly, demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that the same is not frivolous. Such an applicant must, in addition, show that the appeal would be rendered nugatory absent stay
That is a negative order that is not capable of execution. There is therefore nothing to stay.
The Motion fails and is dismissed with no order on costs as the respondents did not attend the hearing of the Motion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kikumu v Nthiga & 6 others (Civil Application E041 of 2024) [2025] KECA 169 (KLR)", Case Analysis (2025). Not stated in the judgment (Motion on notice under rule 5(2)(b) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/169/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.