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Court of AppealDismissedCivil Application No. E233 of 2024 (motion under rule 5(2)(b) of the Court of Appeal Rules)

Imathiu v Brenchley (The Legal Representative of the Estate of David Lee Brenchley) (Civil Application E129 of 2024) [2025] KECA 395 (KLR)

Court of Appeal of Kenya
21 February 2025
1,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause the order transferring contested Meru land, ruling the appeal would not be pointless since the land can be recovered or compensated later.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (ole Kantai, Lesiit and Ali-Aroni, JJ.A) on a motion under rule 5(2)(b) of the Court of Appeal Rules in which Peter Kirima Imathiu sought a stay of execution of a judgment of the Environment and Land Court at Meru (Nzili, J., delivered 20 November 2024). That court had allowed the respondent's first appeal, holding that the applicant held parcels LR Nos. Nyaki/Munithu/1480 and 1481 in trust for her deceased husband, and ordered the applicant to sign transfer forms within 30 days, failing which the Deputy Registrar could execute. The applicant, registered proprietor since 1993, argued that his intended appeal was arguable and would be rendered nugatory if the land was transferred. Applying the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the grounds challenging the existence of a trust arguable, but held that the applicant failed the nugatory limb: he does not reside on the land, the respondent deponed that it is her matrimonial property which she does not intend to dispose of, and the applicant could be compensated in damages. The Court dismissed the motion with costs. This ruling does not disturb the ELC decision; it is confined to the interim stay, and its binding contribution is the restatement of the rule 5(2)(b) test. The intended appeal against the trust finding remains pending.

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
  2. 2.Whether the appeal would be rendered nugatory if a stay of execution of the Environment and Land Court judgment is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The grounds challenging the finding of a trust were held arguable; the applicant satisfied the first limb of the test.

Reasoning

The Court examined the draft Memorandum of Appeal, in which the applicant contended that the ELC Judge erred in finding a trust contrary to the evidence. The Court found these grounds not idle, applying the settled standard that an arguable point is one that requires full consideration and determination by the Court, citing Damji Pragji Mandavia.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

It would not; the nugatory limb failed and the application was dismissed.

Reasoning

The Court noted there was no contest that the applicant does not reside on the suit land; the respondent deponed that the land is her matrimonial property which she does not intend to dispose of; and there was no evidence the applicant could not be compensated in damages if the appeal succeeded. Nothing would be negated by refusing the stay.

p. 3

Legal principles established

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  • A rule 5(2)(b) applicant must demonstrate both that the appeal (or intended appeal) is arguable and that it would be rendered nugatory absent stay.
  • An arguable point on appeal is one requiring full consideration by the Court, not one which will necessarily succeed.

Court orders

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  1. 1.The motion seeking a stay of execution of the judgment of the Environment and Land Court pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

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 at Meru
Jurisdiction invoked
Section 3 of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the judgment of the Environment and Land Court at Meru pending the hearing and determination of the intended appeal

The applicant failed to satisfy the nugatory-prong of the rule 5(2)(b) test; he does not reside on the suit land, the respondent does not intend to dispose of it, and the applicant can be compensated in damages

p. 3

Costs

The motion was dismissed with costs to the respondent.

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.

For an applicant to succeed he must, firstly, show 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.
p. 2Rule 5(2)(b) – arguability threshold
There is no evidence that the applicant cannot be compensated in damages if the appeal succeeds and the suit land was beyond his reach. In other words nothing would be negated if the application was refused.
p. 3Nugatory-prong analysis
The applicant has failed to satisfy us that the appeal will be rendered nugatory if we do not grant a stay. Therefore, the motion fails and is dismissed with costs.
p. 3Final orders / disposition

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, "Imathiu v Brenchley (The Legal Representative of the Estate of David Lee Brenchley) (Civil Application E129 of 2024) [2025] KECA 395 (KLR)", Case Analysis (2025). Civil Application No. E233 of 2024 (motion under rule 5(2)(b) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/395/eng@2025-02-21

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