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Court of AppealAllowedNot stated in the judgment

Ramji Meghji Gudka Limited v Openda & 2 others (Civil Application E163 of 2023) [2025] KECA 189 (KLR)

Court of Appeal
7 February 2025
2,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal protected a Kisii landowner's title from being cancelled until his full appeal is heard, showing courts will preserve property pending appeal.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJ.A) on a Notice of Motion dated 15th December 2023 brought under Rule 5(2)(b) of the Court of Appeal Rules 2010 by Ashwin Ramji Gudka, seeking stay of execution of the judgment of the Environment & Land Court at Kisii (Munyao, J.) dated 28th November 2023. That judgment had dismissed the applicant's suit claiming to be the bona fide registered owner of LR No. Kisii Municipality/BlockIII/35, allowed the 3rd respondent's counterclaim, and ordered the Land Registrar Kisii County to nullify the applicant's title and maintain the property as public land. The 3rd respondent, Kisii County, opposed, arguing the plot fell on a public road, the applicant was not in occupation, and stay would serve no purpose. Applying the twin Rule 5(2)(b) tests, the court found a single bona fide arguable ground - whether the suit property was public land - sufficed, and that the appeal would be rendered nugatory given the applicant's development on the land and the speed at which its character was being altered. The court held the applicant satisfied the Rule 5(2)(b) requirements, allowed the motion to preserve the status quo pending the intended appeal, and ordered costs in the cause. This is an interlocutory decision; the decision below was not disturbed on the merits.

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 under Rule 5(2)(b)
  2. 2.Whether the appeal, if successful, would be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal was arguable, inter alia on whether the trial court erred in finding the suit property was public land.

Reasoning

The court applied the settled test that an arguable appeal need not succeed but must not be idle or frivolous; a single bona fide arguable ground suffices. It identified the question whether the land was public land as arguable without making definitive findings lest it embarrass the bench hearing the main appeal.

p. 4
02

Whether the appeal would be rendered nugatory if stay is denied

Holding

The appeal would be rendered nugatory; the status quo was to be preserved by injunction pending the appeal.

Reasoning

The applicant's title had been nullified and the property declared public land, yet the applicant had made development on it. The rapid alteration of the property's character (conversion to a carwash) lent credit to the applicant's fears, so the land should be protected pending full determination.

p. 5

Legal principles established

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  • Rule 5(2)(b) applications are a preservation tool; the twin tests are an arguable appeal and that the appeal would be rendered nugatory absent the orders.
  • A single bona fide arguable ground suffices, and an arguable appeal need not necessarily succeed.
  • In assessing nugatory-ness the court must weigh the conflicting claims and hardships of both sides.

Court orders

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  1. 1.Stay of execution of the judgment of the Environment & Land Court at Kisii dated 28th November 2023, including the order nullifying the title to LR No. Kisii Municipality/BlockIII/35, granted pending the hearing and determination of the intended appeal
  2. 2.Costs shall be in the cause

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 Kisii
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules 2010, derived from Article 164(3) of the Constitution

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.

We hold that the applicant has satisfied the requirements under Rule 5(2)(b) of this Court's Rules. Accordingly, the notice of motion dated 15th December 2023 is hereby allowed. Costs shall be in the cause.
p. 5Final orders - stay allowed, costs in the cause
Rule 5(2) (b) is essentially a tool for preservation. It safeguards the substratum of the Appeal in consonance with principles developed over the years.
p. 3Nature of Rule 5(2)(b) jurisdiction
We are persuaded that this is land that should be protected; and we are inclined to issue an injunction to preserve the status quo so that the competing rights (or lack of them) are determined after the parties have been heard.
p. 5Preservation of status quo pending appeal

Issues in the judgment

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minor

Parties/respondents other than the 3rd respondent are not individually named in the ruling; party names recorded generically.

minor

Applicant referred to in both masculine and feminine terms within the ruling.

minor

The precise orders granted are stated generally (allowing the motion) rather than itemised; the motion sought both stay and maintenance of the property as public land, and the court speaks of issuing an injunction to preserve the status quo.

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, "Ramji Meghji Gudka Limited v Openda & 2 others (Civil Application E163 of 2023) [2025] KECA 189 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/189/eng@2025-02-07

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