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Court of AppealAllowedCivil Application No. E012 of 2025

Noru v Gitau & 4 others (Civil Application E109 of 2024) [2025] KECA 1087 (KLR)

Court of Appeal of Kenya
5 June 2025
2,886 words in judgment
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·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped eviction from bought land until the buyer's appeal is heard, because eviction could not be undone if the appeal succeeded.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri on a notice of motion dated 5th November 2024 by Michael Kigaya Noru seeking stay of execution of a judgment of the Environment and Land Court at Murang'a (L.N. Gacheru, J.) delivered on 3rd October 2024, which nullified the applicant's purchase of the suit land at a public auction conducted in execution of a charge arising from the 1st respondent's loan default, on the basis that the auction was fraudulent and irregular. The applicant, who had filed a notice of appeal and whose appeal was registered as Civil Appeal E012 of 2025, argued that the trial judge erred in finding fraud without the requisite standard of proof, and that eviction and demolition of his permanent residences on the land would render the appeal nugatory. The 1st respondent opposed, contending that the applicant was improving his case on appeal, that the appeal was arguably filed out of time under rule 82, and that a stay would cause him greater hardship through loss of possession and accruing loan interest. Applying the settled twin principles under rule 5(2)(b), the Court found one bona fide arguable ground on the finding and standard of proof of fraud, and held that the potentially irreversible eviction of the applicant's family would render a successful appeal nugatory. Weighing the balance of hardship, it granted the stay of execution pending the hearing of the intended appeal, with costs of the application in the cause. The application was heard and determined by Lesiit, Ochieng and Ali-Aroni, JJA, in a single unanimous judgment.

Questions the Court framed

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

  1. 1.Whether the application has met the threshold for the grant of a stay of execution pending appeal, namely whether the intended appeal is arguable and whether it would be rendered nugatory if a stay is not granted
  2. 2.Whether the balance of hardship favours the grant of a stay

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal raised at least one arguable ground, namely the trial judge's finding of fraud and the standard of proof applied, warranting the Court's attention.

Reasoning

The applicant challenged the trial judge's finding of fraud and the standard of proof applied. The Court, having perused the submissions and considered counsel's arguments, was satisfied that a single bona fide arguable ground suffices under the settled principles and that the ground on the standard of proof in fraud claims met that threshold without making definitive findings that would embarrass the full appeal.

p. 6
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The potential eviction of the applicant and his family, who have established residence on the suit land, could be irreversible and would render a successful appeal nugatory.

Reasoning

The applicant had constructed permanent residences and settled his elderly mother on the suit land. The Court held that the consequences of eviction may be irreversible, satisfying the nugatory principle that what is sought to be stayed must be reversible or compensable in damages. The balance of hardship also favoured preservation of the status quo, noting the trial court's earlier status quo order.

p. 6
03

Alleged improvement of the case on appeal and timeliness under rule 82

Holding

These were matters for the hearing of the appeal or a formal application to strike out, and did not negate arguability at this interlocutory stage.

Reasoning

The 1st respondent argued the applicant was improving his case on appeal and that the appeal may have been filed out of time under rule 82. The Court held these concerns were preliminary, could be fully canvassed at the hearing of the appeal, and could be addressed through a formal striking-out application if made.

p. 6

Legal principles established

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  • The jurisdiction under rule 5(2)(b) is original, independent and discretionary, to be exercised judiciously upon demonstration of an arguable appeal and that the appeal will be rendered nugatory absent a stay.
  • A single bona fide arguable ground suffices to establish arguability under rule 5(2)(b).
  • Where impecuniosity of a respondent is alleged as rendering an appeal nugatory, the evidential burden shifts to the respondent to rebut the claim.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment and Land Court at Murang'a dated 3rd October 2024 pending the lodging, hearing and determination of the intended appeal
  2. 2.Costs of the application to be in the cause of the appeal

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment and Land Court at Murang'a
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

Considering all the circumstances of this case, we are persuaded that the applicant has met the threshold for the grant of a stay of execution. It is just and equitable to preserve the status quo pending the hearing of the intended appeal to prevent potential irreparable harm and to ensure that the appeal, if successful, is not rendered nugatory.
p. 6Disposition - grant of stay
It is trite that the jurisdiction of this Court under rule 5(2)(b) is original, independent, and discretionary.
p. 4Nature of rule 5(2)(b) jurisdiction
On whether the appeal is arguable, it is suficient if a single bonafide arguable ground of appeal is raised.
p. 5Arguability threshold
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 5Nugatory test
Costs of this application shall be in the cause of the appeal.
p. 6Costs order

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, "Noru v Gitau & 4 others (Civil Application E109 of 2024) [2025] KECA 1087 (KLR)", Case Analysis (2025). Civil Application No. E012 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1087/eng@2025-06-05

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