M'Nyiruu (Suing as the Legal Representative of the Estate of Stanley M’Nyiruu M’Nchau) & another v Koome & another (Legal representative of the Estate of M'Ajogi M'Nchau alias Nchau) (Civil Application E082 of 2024) [2025] KECA 1002 (KLR)
The bottom line
#The Court of Appeal refused to halt enforcement of a land judgment because the applicants only claimed, but never demonstrated, the appeal would be worthless without a 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 intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if a stay of execution is not granted
Key legal issues
#Whether the intended appeal was arguable
The court found at least one arguable ground in the annexed memorandum of appeal, including the challenge to the finding of fraud
The memorandum of appeal raised grounds that the Judge erred in finding that the transfer of the suit land to the applicants was fraudulent, that no evidence proved fraud, and that the Judge misconstrued the evidence. The court agreed that these grounds were arguable, relying on Somak Travels which holds that one arguable point suffices.
Whether the appeal would be rendered nugatory if stay was not granted
The applicants failed to demonstrate nugatory-ness; merely alleging that the appeal would be rendered nugatory without showing how is insufficient
Although the applicants asserted they stood to lose the land, the court found that nowhere did they allege or demonstrate the manner in which the appeal would be rendered nugatory if the stay was not granted. The second twin principle of Rule 5(2)(b) jurisdiction was therefore not satisfied and the application failed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability and nugatory-ness, and must sufficiently demonstrate how the appeal will be rendered nugatory, not merely plead it
- One arguable point suffices to satisfy the first principle, and an arguable point need not be one that must succeed on appeal
Court orders
#- 1.The Notice of Motion dated 27th August 2024 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC)
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELC judgment dated 12th June 2024 / alternative order of status quo
The applicants failed to demonstrate that the appeal would be rendered nugatory if the stay was not granted; arguability alone was insufficient
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.
The applicant needed to plead not just that the appeal will be rendered nugatory, but to suficiently demonstrate the same. The applicant has not demonstrated in what manner the appeal may be rendered nugatory.
We find no merit in this application and the same is dismissed with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'Nyiruu (Suing as the Legal Representative of the Estate of Stanley M’Nyiruu M’Nchau) & another v Koome & another (Legal representative of the Estate of M'Ajogi M'Nchau alias Nchau) (Civil Application E082 of 2024) [2025] KECA 1002 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 27th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1002/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.