Chege v Ndirangu & another (Civil Appeal (Application) E428 of 2024) [2025] KECA 210 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land judgment because the winner can refund the money and the boundary can simply be redrawn.
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 (not frivolous)
- 2.Whether, if the appeal succeeds, it would be rendered nugatory in the absence of a stay of execution
Key legal issues
#Whether the intended appeal is arguable
The appeal was arguable because a few issues of law were raised that were not entirely frivolous, despite the majority of the 15 grounds being factual matters impermissible in a second appeal.
The Court noted that most of the 15 grounds of appeal concerned errors of fact, which a second appeal cannot entertain. However, a few issues of law were raised which the Court could not say were entirely frivolous. On the low threshold applicable at the stay stage - whether there is even a single bona fide issue - the applicant passed the arguability test.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would not be rendered nugatory: the boundary can be reset as this Court determines, and the damages award of Kshs 259,840 is refundable, the 2nd respondent being an advocate in private practice able to repay it.
The nugatory consideration protects an appellant's eventual success from being reduced to a paper judgment. Here, if the appeal succeeded, the boundary would be set as this Court determines, so no irreversible harm arises. As to the Kshs 259,840 award, the applicant did not controvert the 2nd respondent's deposition that she, an advocate in private practice, can repay it. The test therefore failed.
Legal principles established
#- An applicant for stay of execution under rule 5(2)(b) must satisfy both the arguability and the nugatory-identity considerations; satisfying only one will not suffice.
- At the stay stage the Court need only find a single bona fide issue requiring consideration; the issue need not ultimately succeed.
- Issues of fact cannot be raised in a second appeal before the Court of Appeal.
Court orders
#- 1.The motion dated 13th June 2024 seeking stay of execution pending appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment pending appeal
The applicant satisfied only one of the two rule 5(2)(b) considerations: the appeal was arguable, but he failed to demonstrate that it would be rendered nugatory if it succeeded
Costs
The application is dismissed with costs to the respondents.
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.
To entitle the applicant to the reliefs sought, he must demonstrate that his appeal is arguable, or that it is not frivolous and that unless stay of execution is granted, the appeal will be rendered nugatory if it succeeds.
to preserve the integrity of the appellate process so as not to render any eventual success a mere pyrrhic victory devoid of substance or succour by reason of intervening loss, harm or destruction that turns the appeal into a mere academic ritual.
the applicant has not satisfied us that his appeal will be rendered nugatory, and having failed to satisfy both considerations under rule 5(2)(b) of the Court of Appeal Rules, we find that the motion dated 13th June 2024 is not deserved. The same is hereby dismissed with costs to the respondents. It is so ordered.
Issues in the judgment
#The judgment gives inconsistent dates for the High Court judgment: paragraph 1 states it is dated 24th May 2004, while paragraphs 4 and the reference to the motion in the disposition indicate 24th May 2024.
The judgment gives inconsistent dates for the Chief Magistrates' Court judgment: paragraph 4 first refers to a judgment dated 31st May 202 (an apparent typographical error) whereas paragraph 1 refers to 31st May 2022.
The application is described as dated 13th June 2023 in the opening paragraph, but the memorandum of appeal is dated 1st July 2024 and the dismissal refers to the motion dated 13th June 2024, indicating an internal inconsistency in the motion's date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege v Ndirangu & another (Civil Appeal (Application) E428 of 2024) [2025] KECA 210 (KLR)", Case Analysis (2025). Not stated in the judgment (motion on notice dated 13th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/210/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.