Kanja & another v Marete & 2 others (Civil Application E039 of 2025) [2025] KECA 2090 (KLR)
The bottom line
#The Court of Appeal refused to pause execution of a Meru land ruling because the applicants failed to show their appeal had any real merit.
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 demonstrated an arguable appeal
- 2.Whether, absent an order of stay, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The applicants failed to establish an arguable appeal because they did not explain why they did not take up opportunities to be heard in the earlier suits whose orders remained in force and unchallenged.
The court reasoned that the applicants' failure to state why they did not participate in Githongo ELC Misc. No. E005 of 2023 and Meru HCSC No. 78 of 2001, combined with the fact that valid orders from those suits were never appealed or challenged, meant there was no prima facie evidence of an arguable appeal. The first limb of the rule 5(2)(b) test therefore failed.
Whether the intended appeal would be rendered nugatory absent stay
The court did not determine the second limb, having found the first limb failed, but observed in passing that no eviction had occurred or was threatened.
Because the arguability limb failed, the court held it unnecessary to consider the nugatory limb. In passing, it noted that there had been no eviction of the applicants nor any threat to evict, indicating the appeal would not be rendered nugatory in any event.
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 absent stay; both limbs must be demonstrated.
- An arguable appeal is one that is not frivolous or idle; it need not necessarily succeed.
- Where an applicant fails on the arguability limb, the court need not consider the nugatory limb.
Court orders
#- 1.The Motion seeking stay of execution of the ruling of 27th February 2025 and preservation of status quo over LR Abothoguchi/Gitie/1143 is dismissed
- 2.Costs of the application to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Meru
- Meru ELC Case No. E029 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the ELC ruling dated 27th February 2025 and an order of status quo over the suit property pending determination of the appeal
The applicants failed to demonstrate an arguable appeal; unchallenged orders in Githongo ELC Misc. No. E005 of 2023 and Meru HCSC No. 78 of 2001 remained in force, and there was no eviction or threat of eviction.
Costs
The Motion fails and is dismissed with costs to the 2nd respondent.
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.
First, an applicant has to satisfy that he has an arguable appeal. However, an arguable appeal must not be one that will necessarily succeed.
Secondly, an applicant must demonstrate that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory.
The Motion fails and is dismissed with costs to the 2nd respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanja & another v Marete & 2 others (Civil Application E039 of 2025) [2025] KECA 2090 (KLR)", Case Analysis (2025). Court of Appeal Application dated 24th March, 2025 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2090/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.