Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

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)

Court of Appeal of Kenya
2 May 2025
1,244 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This was an application under Rule 5(2)(b) of the Court of Appeal Rules, 2022 by the applicants, who sought a stay of an impugned judgment and decree and a temporary injunction restraining the respondents from trespassing on, encroaching on, or interfering with a disputed portion of land measuring 0.0697 Ha, including their dwelling houses and rental houses, pending the hearing and determination of an intended appeal. The applicants contended they had lived on the land for many years and that the respondents had attempted to re-fence the boundary without a surveyor, with an eviction notice issued in violation of sections 152A to H of the Land Act. The 1st respondent opposed, noting the suit land had been subdivided and titles issued, that the 2nd and 3rd applicants had not consented to the application, and that they had already moved out. The court, Lesiit, Ali-Aroni and Odunga, JJA, delivering one unanimous judgment at Nyeri on 2nd May 2025, first confirmed competency since a notice of appeal had been filed as required by Rule 77, following Halai v Thornton & Turpin. It then applied the twin principles for stay or injunction pending appeal. It found no arguable grounds: the applicants had been given three months to remove their structures and the 2nd and 3rd applicants had vacated within that period, so execution was already partly effected and nothing remained to stay or injunct. The nugatory limb was consequently not considered. The application was dismissed with costs to the respondents.

Questions the Court framed

#

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

  1. 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. 2.Whether the applicants have demonstrated an arguable appeal
  3. 3.Whether the appeal, if successful, would be rendered nugatory if a stay or injunction is not granted

Key legal issues

#
01

Competency of a Rule 5(2)(b) application

Holding

The application was competent because the applicants had filed a notice of appeal dated 9th July 2024, satisfying the jurisdictional precondition.

Reasoning

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.

p. 2
02

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 3
03

Whether the appeal would be rendered nugatory

Holding

The court declined to consider the nugatory principle since no arguable appeal existed, and dismissed the application with costs.

Reasoning

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.

p. 3

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. 1.The notice of motion dated 31st October 2024 is dismissed
  2. 2.Costs of the application are awarded to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

p. 3

Stay of the impugned judgment and decree

No arguable appeal was demonstrated, making it unnecessary to consider the nugatory principle

p. 3

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.
p. 2Twin principles for stay and injunction pending appeal under Rule 5(2)(b)
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.
p. 3Futility of stay orders where the decree has already been executed
The result is that the application has no merit and is dismissed with costs to the respondents.
p. 3Final orders - dismissal of the application with costs
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.
p. 2Threshold of arguability - a single arguable point suffices

Issues in the judgment

#
minor

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.