Mugo (Suing as Legal Representative of Donald Mbugua Mugo) v Omollo) & 2 others (Civil Appeal (Application) E988 of 2023) [2025] KECA 518 (KLR)
The bottom line
#The Court of Appeal refused to stop execution of a land judgment, ruling that winning the 'arguable appeal' test alone is not enough—you must also prove the appeal would be rendered worthless.
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 application can be disposed of on the ground that the ruling sought to be stayed was a negative order
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal will be rendered nugatory if stay and injunction are not granted
Key legal issues
#Whether an application seeking an injunction can be defeated on the basis that the decision sought to be stayed was a negative order
No. Because the application seeks an injunction against a positive action concerning the suit property, the negative-order objection fails.
The 1st respondent argued that a negative order cannot be stayed. The Court noted that although the application for setting aside the ex-parte judgment was dismissed, the applicant sought to stop a positive action by the respondent regarding the suit property. The Court therefore held the preliminary argument could not dispose of the application, without definitively endorsing or rejecting the negative-order doctrine itself.
Whether the intended appeal is arguable
Yes. The appeal challenges the Judge's exercise of discretion and appreciation of the evidence, and a single bona fide issue suffices.
The Court reiterated that a single bona fide issue is sufficient and that grounds need not be argued at the rule 5(2)(b) stage; an applicant need only point out grounds believed arguable. Comparing the impugned ruling with the memorandum of appeal, the Court found the appeal arguable as it challenged the learned Judge's exercise of discretion, without saying more to prejudice the appeal bench.
Whether the appeal will be rendered nugatory if the orders are not granted
No. The appeal targets the ruling declining to set aside the ex-parte judgment, not ownership; the 1st respondent holds a valid judgment, and the actions complained of are reversible.
The Court stressed that the appeal is against the ruling of 21st November 2023, not the ex-parte judgment of 17th May 2019. The applicant pleaded no tangible loss beyond apprehension of dispossession, yet the 1st respondent is the legal proprietor with a valid judgment. Even if undoing acts done in pursuit of the judgment would be cumbersome and expensive, they remain reversible, so the nugatory limb failed.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; demonstrating only one limb is insufficient.
- In determining nugatory-ness, the Court must balance the applicant's right of appeal against the respondent's right to enjoy the fruits of judgment.
- Where the acts sought to be restrained are reversible, the nugatory limb is not established even if undoing them would be cumbersome and expensive.
Court orders
#- 1.The notice of motion dated 13th September 2024 is dismissed
- 2.The costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Milimani ELC Case No. 1082 of 2008
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 47 of the Court of Appeal Rules
Relief refused
#Order of injunction restraining the respondents from dealing with land reference number Nairobi Block 63/522
The applicant failed to establish that the appeal would be rendered nugatory; the actions complained of are reversible
Order of stay of execution of the ELC ruling of 21st November 2023
The nugatory limb was not demonstrated; the 1st respondent has a valid judgment affirming his right to the suit property
Costs
There being a pending appeal, the costs of this application shall abide the outcome of the appeal
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.
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifiing.
In determining the question as to whether an appeal or intended appeal is likely to be rendered nugatory, the Court must always strike a balance between the right of the applicant to appeal and the right of the respondent to enjoy the fruits of judgment.
The upshot of the foregoing is that the notice of motion dated 13th September 2024 lacks merit and is hereby dismissed. There being a pending appeal, the costs of this application shall abide the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo (Suing as Legal Representative of Donald Mbugua Mugo) v Omollo) & 2 others (Civil Appeal (Application) E988 of 2023) [2025] KECA 518 (KLR)", Case Analysis (2025). Notice of motion dated 13th September 2024 (in intended appeal from Milimani ELC Case No. 1082 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/518/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.