Mugambi (Suing in a Personal Capacity and also as an Administrator of the Estate of the Late Julius Muringi Mugambi - Deceased) & 3 others v Hosea & 4 others (Civil Appeal (Application) E182 of 2024) [2025] KECA 998 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt a land eviction because the applicants had already vacated — once execution is done, there's nothing left to stay.
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 is competent, being contingent on the filing of a notice of appeal under Rule 77 of the Court of Appeal Rules
- 2.Whether the applicants have demonstrated an arguable appeal
- 3.Whether the appeal, if successful, would be rendered nugatory if a stay or injunction is not granted
Key legal issues
#Competency of a Rule 5(2)(b) application
The application was competent because the applicants had filed a notice of appeal dated 9th July 2024, satisfying the jurisdictional precondition.
The court reiterated that its power to stay an impugned judgment under Rule 5(2)(b) depends on a notice of appeal having been lodged under Rule 77 of the Court of Appeal Rules, as confirmed in Halai & Another v Thornton & Turpin [1963] Ltd. Since the applicants demonstrated filing of the notice of appeal, the competency threshold was met and the court proceeded to consider the twin principles.
Arguability of the intended appeal
The court found no arguable grounds of appeal because execution of the decree was already in course and partly complete, with the 2nd and 3rd applicants having moved out within the prescribed period.
Although the applicants filed a memorandum of appeal with seven grounds and urged that the respondents disturbed the status quo without involving the trial court and that the eviction violated sections 152A to H of the Land Act, the court held that the 1st applicant did not demonstrate he remained on the land or how he would be affected. The 2nd and 3rd applicants had vacated within the three months given on 4th July 2024, and whether their departure was voluntary was superfluous; nothing remained to stay or injunct.
Whether the appeal would be rendered nugatory
The court declined to consider the nugatory principle since no arguable appeal existed, and dismissed the application with costs.
Under the settled twin-principle test, an applicant must establish both arguability and that the appeal would be rendered nugatory absent the orders sought. Having found no arguable grounds, the court found it unnecessary to examine the nugatory limb. The application therefore failed and costs followed to the respondents.
Legal principles established
#- The Court of Appeal's jurisdiction to stay an impugned judgment and decree under Rule 5(2)(b) is contingent on a notice of appeal having been filed pursuant to Rule 77 of the Court of Appeal Rules.
- An applicant under Rule 5(2)(b) must satisfy the twin principles that the appeal is arguable and that it is likely to be rendered nugatory if the application is declined and the appeal were to subsequently succeed; a single arguable point suffices.
- Where the decree has already been substantially executed and the party seeking a stay has vacated the suit land, there is nothing left to stay or injunct and the application fails at the arguability stage.
Court orders
#- 1.The notice of motion dated 31st October 2024 is dismissed
- 2.Costs of the application are awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Superior court (trial court) - name and case number not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022, read with Rule 77 thereof
Relief refused
#Temporary injunction restraining the respondents from trespassing upon, encroaching on or otherwise interfering with the disputed portion of the suit land (0.0697 Ha), including preservation of the status quo pending the appeal
The applicants failed to demonstrate any arguable ground of appeal; execution of the decree had already partly been effected with the 2nd and 3rd applicants having moved out, leaving nothing to stay or injunct
Stay of the impugned judgment and decree
No arguable appeal was demonstrated, making it unnecessary to consider the nugatory principle
Costs
The application is dismissed with costs to the 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.
What the applicant needs to demonstrate in order to obtain the orders sought is the fulfilment of the twin principles: one, that the appeal is arguable, and two, that it is likely to be rendered nugatory if the application is declined and the appeal were to subsequently succeed.
Having vacated, there would be nothing to stay as the horse has bolted, so to speak. We are not satisfied that there is anything to stay or injunct.
The result is that the application has no merit and is dismissed with costs to the respondents.
It is trite law that the applicant need not show a multiplicity of arguable points. One arguable point is suficient to satisfy the first principle.
Issues in the judgment
#The coram listing at the end of the judgment names three judges (Lesiit, Ali-Aroni and Odunga), but the copy provided is certified as a true copy and the signature lines appear incomplete; the case number and neutral citation are not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugambi (Suing in a Personal Capacity and also as an Administrator of the Estate of the Late Julius Muringi Mugambi - Deceased) & 3 others v Hosea & 4 others (Civil Appeal (Application) E182 of 2024) [2025] KECA 998 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/998/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.