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Court of AppealAllowedNotice of Motion dated 26th February 2025 (Court of Appeal, Nyeri)

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)

Court of Appeal of Kenya
28 November 2025
1,380 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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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

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Executive summary

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Before the Court of Appeal at Nyeri (S. ole Kantai, J. Lesiit and Ali-Aroni, JJAA) was a notice of motion dated 26th February 2025 by Francisca Njeri Gakumo and Veronica Wanjiku Kungu under rule 5(2)(b) of the Court of Appeal Rules 2022, seeking a stay of execution of the judgment of the trial court delivered on 11th April 2024, which ordered them to vacate the suit premises within 120 days failing which they would be evicted. The respondent, Charity Wambui Kamau, opposed, arguing the appeal was not arguable, eviction was reversible, the application was inordinately late (filed nearly a year after judgment) and the applicants were indolent and had not offered security for costs. Applying the twin principles for stay - an arguable appeal and that the appeal will be rendered nugatory without stay - the court found arguable issues in the draft memorandum regarding the computation of the period of possession and the notice dated 18th July 2010. On the nugatory limb, the court noted the applicants' claimed 43-year occupation, which the respondent did not deny, held that monetary compensation may not be adequate where a property has been occupied and exploited for so long, and that an unproven assertion of financial capacity to compensate was insufficient. The court allowed the application and ordered that the costs of the application abide by the outcome of 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 applicants have an arguable appeal
  2. 2.Whether the appeal will be rendered nugatory if execution of the decree is not stayed

Key legal issues

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01

Whether the applicants' intended appeal is arguable

Holding

The court found the draft memorandum raised arguable issues concerning computation of the period of possession and the notice dated 18th July 2010.

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory if stay is denied

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Stay of execution of the judgment and decree of the trial court pending hearing and determination of the appeal
  2. 2.Costs of the application to abide by the outcome of 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
High Court (trial court)
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.

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.
p. 2Twin principles for stay under rule 5(2)(b)
The applicants having satisfied the twin principles, we allow the application and order the costs thereof to abide by the outcome of the appeal.
p. 3Final orders and disposition
it is not suficient for a party to claim they are financially capable of compensation (without providing proof), as the respondent stated.
p. 3Nugatory test - adequacy of monetary compensation

Issues in the judgment

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minor

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

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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, "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.