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Court of AppealPartially AllowedNyeri Civil Appeal No. E022 of 2023 (application dated 13th February, 2024)

Muthigani v Munene (Civil Appeal (Application) E022 of 2023) [2025] KECA 1249 (KLR)

Court of Appeal of Kenya
11 July 2025
1,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal paused enforcement of a land judgment, confirming that even one arguable point is enough to get a stay pending appeal in Kenya.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nyeri, delivered on 11th July 2025 by W. Karanja, J. Lesiit and Ali-Aroni, JJ.A, on an application dated 13th February 2024 brought under rule 5(2)(b) of the Court of Appeal Rules. The applicant, Symon Nyamu Muthigani, sought stay of execution of a judgment of E.C. Cherono, J. in Kerugoya ELC No. 375 of 2013, together with an injunction restraining dealings with land parcel Mwerua/Kagio/I8, pending the hearing of his appeal, Nyeri Civil Appeal No. E022 of 2023. The application was unopposed; the respondent, though served, filed no response and was not represented at the virtual hearing. The court restated the two-pronged test for stay: an arguable appeal and the nugatory aspect. It found one arguable point - whether the trial judge could find adverse possession proved in the respondent's favour when it had not been pleaded, the applicant contending the trial court considered extraneous matters. On the nugatory limb, the court noted the suit land was the subject matter, that the trial court made a positive finding of adverse possession without a definitive order on ownership, and that a change of ownership could put the land beyond the applicant's reach if the appeal succeeded. Both principles were satisfied. The court granted a stay of execution of the superior court's judgment, decree and order pending the hearing and determination of the appeal, and directed the Deputy Registrar to conduct case management with a view to a priority hearing date. No costs order was made and the second prayer for an injunction was not separately granted.

Questions the Court framed

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

  1. 1.Whether the applicant has an arguable appeal
  2. 2.Whether the appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the appeal is arguable

Holding

The court found one arguable point: whether the trial judge could decide adverse possession in the respondent's favour when it had not been pleaded, the applicant contending the trial court considered extraneous matters.

Reasoning

Applying Somak Travels Ltd vs. Gladys Aganyo, the court reiterated that a single arguable point suffices and that an arguable point need not succeed on appeal, only merit consideration by the Court. The trial judge's finding on adverse possession despite absence of a plea, and the alleged consideration of extraneous matters, met that threshold.

p. 2
02

Whether the appeal would be rendered nugatory if stay is denied

Holding

The court was satisfied the nugatory principle was met: if ownership of the suit land changed and the appeal succeeded, the land may get beyond the applicant's reach.

Reasoning

The subject matter is land and the applicant is the registered owner through transmission. The trial court made a positive finding of adverse possession but made no definitive order on ownership. A change of ownership pending appeal would risk irreparable loss and destroy the substratum of the appeal, warranting preservation.

p. 2

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter so that the appeal, if successful, is not rendered nugatory; the applicant must establish both an arguable appeal and that the appeal will be rendered nugatory if stay is declined.
  • One arguable point is sufficient to satisfy the first principle for grant of stay; an arguable point need not be one that must succeed on appeal.

Court orders

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  1. 1.A stay of execution of judgment and decree/order given in the Environment and Land Court of Kerugoya ELC No. 375 of 2013 by E.C. Cherono, J. on the 12th of November 2023 is granted pending the hearing and determination of the Appeal
  2. 2.The Deputy Registrar of this Court to carry out Case Management with a view of giving a hearing date on priority

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court, Kerugoya
ELC No. 375 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (CAR)

Relief refused

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Order of injunction restraining the respondent from dealing with all that parcel of land known as Mwerua/Kagio/I8 pending the hearing and determination of the appeal

The court granted stay of execution in those terms but did not separately issue the injunction order sought in prayer 2 of the application

Costs

No costs order was made in the judgment

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.

A stay of execution of judgment and decree/order given in the Environment and Land Court of Kerugoya ELC No. 375 of 2013 by E.C. Cherono, J. on the 12th of November 2023 is granted pending the hearing and determination of the Appeal.
p. 1Final orders - stay of execution granted
The power of this Court to grant stay is a discretionary power, and for the order to be granted the applicant must establish two principles, one that he has an arguable appeal, and two that the appeal will be rendered nugatory if the stay is declined and the appeal was successful.
p. 2Test for stay of execution pending appeal
Due to the nature of the case, we direct the Deputy Registrar of this Court to carry out Case Management with a view of giving a hearing date on priority.
p. 3Final orders - case management direction

Issues in the judgment

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minor

Internal inconsistency in the date of the trial court's judgment: the recitation of the orders sought refers to 12th November 2021 while the orders sought and the final orders refer to 12th November 2023.

minor

The respondent is not named in the judgment; the parties are described only as 'the applicant' and 'the Respondent'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muthigani v Munene (Civil Appeal (Application) E022 of 2023) [2025] KECA 1249 (KLR)", Case Analysis (2025). Nyeri Civil Appeal No. E022 of 2023 (application dated 13th February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1249/eng@2025-07-11

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