Cheptoo & 8 others v National Social Security Fund (NSSF) & 2 others (Civil Appeal (Application) E943 of 2023) [2025] KECA 799 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is arguable
- 2.Whether, were the appeal to succeed, it would be rendered nugatory absent a stay of execution
Key legal issues
#Arguability of the intended appeal
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.
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.
The nugatory limb of the rule 5(2)(b) test
Having failed on arguability, the Court found it unnecessary to consider the nugatory limb, holding that the two limbs are conjunctive.
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#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
Costs
The application was dismissed with costs to the 2nd and 3rd 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.
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.
The two limbs are conjunctive and satisfying only one of them does not aid the applicant at all.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.