Gakumo & another v Kamau (Being Sued as the Legal Representative of the Estate of Kariuki Kamau - Deceased) (Civil Appeal (Application) E190 of 2024) [2025] KECA 2082 (KLR)
The bottom line
#Kenya's Court of Appeal stopped an eviction, ruling that 43 years of living on land makes the appeal too important to let execution proceed first.
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 applicants have an arguable appeal
- 2.Whether the appeal will be rendered nugatory if execution of the decree is not stayed
Key legal issues
#Whether the applicants' intended appeal is arguable
The court found the draft memorandum raised arguable issues concerning computation of the period of possession and the notice dated 18th July 2010.
The draft memorandum alleged error in the learned Judge's calculation of the time the applicants had been in open, continuous and exclusive possession, and in finding a notice dated 18th July 2010 was issued without evidence. Applying settled principles that a single arguable point suffices and success need not be demonstrated, the court found these issues arguable on appeal without deciding their merits.
Whether the appeal would be rendered nugatory if stay is denied
Given 43 years of occupation and an unsubstantiated claim of financial capacity to compensate, monetary compensation may not adequately recompense the applicants, so the appeal would be rendered nugatory.
The applicants claimed occupation since 1982 and the respondent did not deny it. The court held that 43 years of occupation is a considerable period, especially where the property has been exploited, and that the substratum of the appeal must be safeguarded. A bare assertion of ability to compensate, without proof, was insufficient, and monetary compensation may not be adequate should the appeal succeed.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- A single arguable point suffices, and the applicant need not show that the arguable point will succeed.
Court orders
#- 1.Stay of execution of the judgment and decree of the trial court pending hearing and determination of the appeal
- 2.Costs of the application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (trial court)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2022
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.
An applicant must demonstrate that they have an arguable appeal; and That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree order or proceedings is not stayed.
The applicants having satisfied the twin principles, we allow the application and order the costs thereof to abide by the outcome of the appeal.
it is not suficient for a party to claim they are financially capable of compensation (without providing proof), as the respondent stated.
Issues in the judgment
#The judgment dates the respondent's submissions and list of authorities to 24th April 2024, but the replying affidavit they accompany was sworn on 24th April 2025; the 2024 date appears to be an error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakumo & another v Kamau (Being Sued as the Legal Representative of the Estate of Kariuki Kamau - Deceased) (Civil Appeal (Application) E190 of 2024) [2025] KECA 2082 (KLR)", Case Analysis (2025). Notice of Motion dated 26th February 2025 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2082/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.