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Court of AppealDismissedNotice of motion dated 5th August 2024 in an appeal against HCC ELC Case concerning land parcel LR 97/0XX0/5X4

Cheptoo & 8 others v National Social Security Fund (NSSF) & 2 others (Civil Appeal (Application) E943 of 2023) [2025] KECA 799 (KLR)

Court of Appeal
9 May 2025
1,482 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 execution of a land judgment because the applicants had no documents proving their ownership claim.

What this practically means

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Executive summary

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The applicants, who were dismissed at trial by L. Komingoi, J. of the Environment and Land Court on 26th July 2023, filed an appeal and moved the Court of Appeal by notice of motion dated 5th August 2024 seeking a stay of execution of the judgment and decree pending the hearing of the appeal, under rule 5(2)(b) of the Court of Appeal Rules, 2022. The 2nd and 3rd respondents opposed the application through replying affidavits; the 1st respondent did not participate. Applying the settled two-limb test restated by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court found the appeal not arguable: the applicants had no documents on which to peg their ownership claim, their occupation rested on a sale agreement between the 1st and 3rd respondents, and the 3rd respondent conceded she never completed the purchase and had no interest in the land, which was lawfully sold to the 2nd respondent. Relying on Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court held the arguability and nugatory limbs conjunctive; arguability having failed, the nugatory question was moot and was not considered. The application was dismissed with costs to the 2nd and 3rd respondents. This was an interlocutory ruling on stay; the Court made no findings on the substantive appeal, expressly deferring to the bench that will hear it.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is arguable
  2. 2.Whether, were the appeal to succeed, it would be rendered nugatory absent a stay of execution

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was not arguable because the applicants had no documents on which to peg their claim to ownership, and the 3rd respondent conceded she had no interest in the suit property, having failed to complete the purchase.

Reasoning

The Court examined the motion and supporting affidavit and found the applicants' occupation rested on a sale agreement between the 1st respondent and the 3rd respondent, who had conceded she did not complete the purchase and had no claim. Without any documents supporting their ownership claim, the applicants could not raise a fit issue for argument, so the appeal lacked merit on its face.

p. 3
02

The nugatory limb of the rule 5(2)(b) test

Holding

Having failed on arguability, the Court found it unnecessary to consider the nugatory limb, holding that the two limbs are conjunctive.

Reasoning

The Court restated the law per Stanley Kang'ethe Kinyanjui v Tony Ketter that an applicant must satisfy both conjunctive limbs. Since the applicants had already failed to demonstrate arguability, the nugatory enquiry became moot and was not decided, and the application was dismissed on the first limb alone.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must establish that the appeal is arguable and that, if it succeeds, it would be rendered nugatory absent the orders sought; both limbs are conjunctive and satisfying only one does not suffice.

Court orders

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  1. 1.The notice of motion dated 5th August 2024 seeking stay of execution pending appeal is dismissed with costs to the 2nd and 3rd respondents

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
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the judgment and decree of the Environment and Land Court pending the hearing and determination of the appeal

The applicants failed to demonstrate that the appeal is arguable; the two limbs of the rule 5(2)(b) test are conjunctive and, arguability having failed, the nugatory limb does not arise

p. 4

Costs

The application was dismissed with costs to the 2nd and 3rd respondents.

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.

In order to persuade the Court to stay execution, issue injunction or stay any further proceedings pursuant to the discretionary power granted under rule 5(2 (b) of this Court’s Rules, 2022, an applicant must establish that there is an arguable appeal which, were it to eventually succeed, would be rendered nugatory owing to the failure to issue any of the stated orders.
p. 3Threshold for rule 5(2)(b) applications
The two limbs are conjunctive and satisfying only one of them does not aid the applicant at all.
Conjunctive nature of the rule 5(2)(b) test
In conclusion, our finding is that the notice of motion dated 5th August 2024 fails to meet the threshold set for such applications to succeed. We dismiss it with costs to the 2nd and 3rd respondents.
p. 4Final orders - dismissal of the application

Issues in the judgment

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minor

The coram as printed lists the third judge's surname only ('G. V. ODUNGA') without the rank designation 'JUDGE OF APPEAL', unlike the first two judges; the name and rank have been recorded accordingly.

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, "Cheptoo & 8 others v National Social Security Fund (NSSF) & 2 others (Civil Appeal (Application) E943 of 2023) [2025] KECA 799 (KLR)", Case Analysis (2025). Notice of motion dated 5th August 2024 in an appeal against HCC ELC Case concerning land parcel LR 97/0XX0/5X4. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/799/eng@2025-05-09

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