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Court of AppealAllowedNotice of Motion dated 23rd October 2024 (Civil Application, Court of Appeal at Mombasa)· [2025] KECA 782 (KLR)

Settlement Funds Trustees & 2 others v Fatuma Mohammed & 5 others

Court of Appeal of Kenya
9 May 2025
SKS. Gatembu KairuKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
2,526 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the eviction of over 1,000 Mwatate residents, ruling their intended appeal was arguable and eviction losses could not be compensated.

What this practically means

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Executive summary

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By a Notice of Motion dated 23rd October 2024, the applicants - including the Settlement Fund Trustees and State parties - sought stay of execution of the judgment and decree of the Environment and Land Court at Voi (E. K. Wabwoto, J.) dated 18th October 2024, pending appeal. The underlying suit concerned L.R. No. 12924-CR 20403 in Mwatate, measuring 9,070 hectares and home to over 1,000 residents, which the trial court declared belonged to Wananchi Ranching (Directed Agricultural) Limited after finding fraudulent transfers. The applicants contended they were condemned unheard, having had no notice of the proceedings, and that the resident population was not joined to the suit. The respondents opposed, submitting the applicants had no arguable appeal and that the Court's jurisdiction cannot be invoked in a vacuum. Applying the twin principles under rule 5(2)(b) of the Court of Appeal Rules, 2022, the Court found the intended appeal arguable - raising bona fide issues of denial of hearing, non-joinder, and alleged fraudulent acquisition of the property. On the nugatory limb, it held that enforcement would cause tremendous, uncompensable loss to more than 1,000 residents facing eviction and demolition, while the respondents would suffer no prejudice. The Motion was allowed: execution of the trial judgment and decree was stayed pending appeal, conditional on the applicants filing and serving the record of appeal within 45 days, failing which the stay lapses automatically. Costs of the Motion were ordered to abide the outcome of the appeal. The judgment was delivered at Mombasa on 9th May 2025 by a unanimous bench of three Judges of Appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The grounds - that the applicants were condemned unheard without notice, that over 1,000 residents were not joined, and alleged fraudulent acquisition of the suit property - were bona fide arguable points, satisfying the first limb.

Reasoning

The Court examined the grounds discernible from the Motion and supporting affidavit, including lack of notice of proceedings, condemnation unheard, non-joinder of over 1,000 residents facing eviction, and allegations of fraudulent transfer of the suit property. It concluded these were not idle grounds but raised bona fide arguable points deserving consideration, needing only one such point to suffice.

p. 5
02

Whether the appeal would be rendered nugatory absent stay

Holding

Enforcement of the decree would result in tremendous, uncompensable loss to over 1,000 residents facing eviction, satisfying the nugatory limb.

Reasoning

Considering the circumstances - allegations of fraudulent acquisition, lack of notice, and over 1,000 residents risking eviction and demolition of homes in enforcement of a decree in a suit to which they were not party - the Court found the appeal would be worthless or futile absent stay, and the loss could not be adequately compensated by damages, while respondents would suffer no prejudice.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin conjunctive principles of an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • A single arguable point suffices to satisfy the arguability limb; a multiplicity of points need not be shown.
  • The purpose of a stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while weighing the respondent's right to the fruits of judgment.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment and Land Court at Voi (E. K. Wabwoto, J.) dated 18th October 2024 pending appeal
  2. 2.The applicant to file and serve the record of appeal within forty-five (45) days failing which the stay orders shall automatically lapse
  3. 3.Costs of the Motion to abide the outcome of the appeal
On appeal from
Environment and Land Court at Voi
ELC Case No. 7 of 2024 (formerly Nairobi HCCC No. 1663 of 2000, transferred as Mombasa HCCC No. 40 of 2017)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 (stay of execution pending appeal)

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, "Settlement Funds Trustees & 2 others v Fatuma Mohammed & 5 others", Case Analysis (2025). Notice of Motion dated 23rd October 2024 (Civil Application, Court of Appeal at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/782/eng@2025-05-09

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