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Court of AppealPartially AllowedNotice of motion dated 26th October, 2022

Mugo & another v Ngari (Civil Application E083 of 2022) [2025] KECA 1555 (KLR)

Court of Appeal
3 October 2025
1,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped an eviction, letting a family stay on land they've occupied for 35 years while their adverse possession appeal is decided.

What this practically means

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Executive summary

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The applicants, whose claim to land parcel Nyeri/Uasonyiro/145 by adverse possession had been rejected by the Chief Magistrate's Court at Nyeri and affirmed on appeal by the ELC, moved the Court of Appeal at Nyeri under Rule 5(2)(b) of the Court of Appeal Rules for injunction restraining their eviction pending appeal, or alternatively stay of the decree for vacant possession. They asserted occupation since a 1987 sale agreement with the respondent's consent to transfer procured from the Land Control Board, over 35 years' possession, extensive development, and burial of the 1st applicant's late husband on the land. The respondent countered that the appeal raised only a factual question on computation of time and that the applicants occupied with his consent. Applying the established two-limb Rule 5(2)(b) test as stated in Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others, the Court found the appeal arguable on the computation of the adverse possession period and the effect of the Land Control Board consent, and found that eviction would render a successful appeal nugatory given the applicants' long possession and developments. It granted an injunction restraining eviction pending the hearing and determination of the intended appeal, with costs to abide the outcome of the main appeal. This is an interlocutory decision and does not disturb the decisions below.

Questions the Court framed

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

  1. 1.Whether the applicants' intended appeal is arguable under Rule 5(2)(b)
  2. 2.Whether, unless the orders sought are granted, the intended appeal, if successful, would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable because the computation of the period for adverse possession was in dispute and the Land Control Board consent suggested the sale agreement may have been substantially performed

Reasoning

The court re-evaluated the facts and found that whether the trial court properly calculated when adverse possession began was a live question. The Land Control Board consent also raised the argument that the sale agreement had been substantially performed subject only to payment of the balance. These were not idle points but bona fide grounds suitable for full argument at the hearing of the appeal.

p. 3
02

Nugatory aspect of the intended appeal

Holding

The appeal would be rendered nugatory if the applicants, in possession for over 35 years with extensive developments, were evicted before the appeal was heard

Reasoning

The court accepted that the applicants had been in occupation for more than 35 years, had undertaken considerable developments, and that eviction before the appeal would render any successful appeal nugatory. The two limbs of Rule 5(2)(b) were therefore both satisfied.

p. 3

Legal principles established

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  • To obtain an order under Rule 5(2)(b), an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if the orders are not granted
  • An arguable appeal need not necessarily succeed; a single bona fide arguable ground suffices

Court orders

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  1. 1.Orders of injunction restraining the respondent from evicting the applicants from the suit parcel of land pending the hearing and determination of the intended 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 (ELC), affirming the Chief Magistrate's Court at Nyeri
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (inherent jurisdiction to grant orders pending appeal)

Relief refused

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In the alternative, stay of part of the trial court's decree directing the applicants to deliver vacant possession pending the appeal

The court granted the principal injunctive relief sought; the alternative stay was unnecessary and no separate stay order was issued

p. 3

Costs

The costs shall abide the outcome of the main appeal.

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.

For this Court to grant any order under Rule 5(2)(b) of this Court's Rules, an applicant has to show, first that his intended appeal is arguable, and secondly, that unless he is granted the orders sought, the intended appeal, if successful, will be rendered nugatory.
p. 2Rule 5(2)(b) threshold test
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court, and one which is not frivolous. A single bona fide arguable ground of appeal is suficient to satisfy this prerequisite.
p. 2Definition of an arguable appeal
The applicants are therefore granted orders of injunction restraining the respondent from evicting them from the suit parcel of land pending the hearing and determination of the intended appeal. The costs shall abide the outcome of the main appeal.
p. 3Final orders

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, "Mugo & another v Ngari (Civil Application E083 of 2022) [2025] KECA 1555 (KLR)", Case Analysis (2025). Notice of motion dated 26th October, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1555/eng@2025-10-03

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