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Court of AppealAllowedCivil Application (Rule 5(2)(b)) arising from Milimani ELC Cause No. 179 of 2009, Joseph Ndichu Kiiniu v Ann Wairimu Ndung'u & Stanley Murigi T/A Ann Rose Nursery and Primary School & Embakasi Ranching Co. Ltd

Ndungu v Ndichu & 2 others (Civil Application E566 of 2024) [2025] KECA 1482 (KLR)

Court of Appeal of Kenya
12 September 2025
1,559 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped a contempt-related eviction and Kshs.7 million payment, ruling the intended appeal was arguable and would be wasted if execution proceeded.

What this practically means

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Executive summary

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This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking stay of execution of a ruling of Mbugua, J. delivered on 30th October 2024 and of the underlying judgment and decree of the ELC in Milimani ELC Cause No. 179 of 2009 (Joseph Ndichu Kiiniu v Ann Wairimu Ndung'u & another). In the suit, the 1st respondent claimed ownership of two plots allotted by Embakasi Ranching Co. Ltd and obtained judgment on 23rd June 2022 declaring him owner, cancelling the 2nd respondent's titles, ordering eviction, a permanent injunction, and Kshs.7,000,000 mesne profits. Subsequent applications by Susan Ndungu (the applicant) for stay, joinder and setting aside were dismissed, and she and the 2nd respondent were found in contempt, with a notice to show cause issued. Applying the settled two-limb test from Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the draft grounds of appeal - concerning the identity and ownership of the plots, the refusal to join the applicant, and the contempt conviction - were arguable. On nugatory-ness, it held that the applicant's possible committal to civil jail and the irreversibility of eviction and recovery of the decretal sum would render a successful appeal nugatory. The application was allowed on condition that the applicant files and serves the appeal within 30 days, failing which the stay lapses automatically. Costs were directed to abide the appeal.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable and not frivolous
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The grounds raised against the impugned ruling were not frivolous; they raised bona fide issues on the identity and ownership of plots A69/A70 versus plots 1927/1928, joinder of the applicant, and the contempt conviction

Reasoning

The Court applied the settled Kang'ethe Kinyanjui threshold, asking whether the draft grounds raised at least one bona fide issue deserving full argument. Counsel had identified disputes over whether plots A69 and A70 under LR 10904/2 were the same as Nairobi Block 105 plots 1927 and 1928, whether the Judge erred in refusing to join the applicant, and whether the contempt finding was justified. These were sufficient to satisfy the arguability limb.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

Yes - enforcement of the eviction orders and the contempt proceedings could see the applicant committed to civil jail and the decretal sum recovered, losses that would not be reversible or compensable if the appeal succeeded

Reasoning

The Court accepted that the applicant risked imprisonment following the notice to show cause issued after the contempt finding, and that eviction and recovery of Kshs.7,000,000 would be practically irreversible given doubt about the decree-holder's ability to refund. Loss of liberty would make a successful appeal academic. The two limbs of the Rule 5(2)(b) test were therefore satisfied, justifying a conditional stay.

p. 3

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
  • An arguable appeal is one raising at least one bona fide issue for full argument; nugatory-ness turns on whether what is to be stayed is reversible or compensable in damages
  • Loss of liberty through committal to civil jail renders an intended appeal nugatory and justifies stay

Court orders

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  1. 1.Stay of execution of the ruling of Mbugua, J. delivered on 30th October 2024 and of the judgment and decree of the ELC in Milimani ELC Cause No. 179 of 2009, pending the hearing and determination of the appeal
  2. 2.Stay granted on condition that the applicant files and serves the appeal within 30 days, failing which the stay lapses automatically
  3. 3.Costs to abide the appeal

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, Nairobi
Milimani ELC Cause No. 179 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

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.

The principles applicable in the application for stay are now settled. The applicant has to show that the intended appeal or the appeal (if filed) is arguable, and not merely frivolous.
p. 1Stay - threshold principles
An arguable appeal is one that raises at least one bona fide issue that should be argued fully before the Court.
p. 2Arguability test
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. 2Nugatory test
That being the case, we allow the application but on condition that the applicant files and serves the appeal within 30 days from today. The stay will lapse automatically if the appeal is not filed and served as directed.
p. 3Final orders - conditional stay
We direct that costs do abide the appeal.
p. 3Costs

Issues in the judgment

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minor

The judgment inconsistently dates the impugned ruling, describing it as 'delivered on 30th October 2024' in the application but stating the applicant's application before the ELC was 'dismissed with costs' in 'a ruling delivered on 20th January 2024', which precedes the 23rd June 2022 judgment chronology in an internally inconsistent way

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, "Ndungu v Ndichu & 2 others (Civil Application E566 of 2024) [2025] KECA 1482 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)) arising from Milimani ELC Cause No. 179 of 2009, Joseph Ndichu Kiiniu v Ann Wairimu Ndung'u & Stanley Murigi T/A Ann Rose Nursery and Primary School & Embakasi Ranching Co. Ltd. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1482/eng@2025-09-12

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