Chege & another v Mwangi & another (Civil Appeal (Application) E118 of 2024) [2025] KECA 2142 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt execution of a land ruling because the lower court made no positive order a stay could actually enforce.
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 demonstrated an arguable appeal
- 2.Whether the intended appeal will be rendered nugatory if execution of the ELC orders is not stayed
Key legal issues
#Whether the appeal is arguable
The draft grounds of appeal - concerning the trial judge's finding on the 1962 purchase and first registration of the suit property in the name of Mwangi Samson - are not frivolous, so the first limb is satisfied.
The Court examined the draft memorandum of appeal and found the grounds raising issues of registration and identity of the owner of the suit property not frivolous. Relying on Yellow Horse Inns and Kenya Commercial Bank v. Ombija, it reiterated that a single arguable point suffices and success need not be demonstrated at this stage.
Whether the appeal would be rendered nugatory absent a stay
No: taxation sums are recoverable, mere apprehension of eviction does not suffice, and the ELC made no positive orders capable of being stayed, having simply declined to declare ownership.
Applying Stanley Kangethe Kinyanjui v. Tonny Keter on the meaning of 'nugatory' and Western College v. Oranga on negative orders, the Court held that because the ELC only declined to declare that the suit property belonged to Mwangi Samson alias Samson Kamara Mwangi, there is nothing to enforce or restrain; the second twin principle fails and the application must be dismissed.
Legal principles established
#- To succeed on an application under rule 5(2)(b) of the Court of Appeal Rules, an applicant must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay.
- A single arguable point suffices to establish an arguable appeal, and the applicant need not show that the point will succeed.
- A stay of execution cannot be granted in respect of a negative order - where the court below merely dismissed the suit or declined to make a declaration, there is nothing to stay.
- The term 'nugatory' means not only worthless, futile or invalid but also trifling, and an appeal is rendered nugatory only if what is sought to be stayed is irreversible or not reasonably compensable in damages.
- The mere initiation of taxation does not render an appeal nugatory, since sums paid out are recoverable; nor does a mere apprehension of eviction.
Court orders
#- 1.Dismissal of the notice of motion dated 27th November 2024 seeking stay of execution pending 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
- Environment and Land Court at Murang'a
- Not stated in the judgment
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules 2022 and the Appellate Jurisdiction Act
Relief refused
#Stay of execution of the orders of the Environment and Land Court at Murang'a pending the hearing and determination of the appeal
The applicants failed to demonstrate that the appeal would be rendered nugatory, and the ELC made no positive orders capable of being stayed, having merely declined to declare ownership of the suit property
Costs
Costs to abide by the outcome of the appeal
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.
In the end, we dismiss the application and order that the costs abide by the outcome of the appeal.
We also note that the ELC did not make any orders capable of being stayed; it simply declined to declare that the suit property belonged to Mwangi Samson alias Samson Kamara Mwangi.
Whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved.
The fact that the respondents have initiated the taxation process does not render the appeal nugatory; any sums paid out due to success in the High Court are recoverable.
Issues in the judgment
#The suit property parcel number is inconsistently recorded: paragraph 8 refers to 'Loc 5/Ngerere/271' while paragraph 4 refers to 'Loc 8/Ngerere/271'.
The names and roles of the parties are not stated in the title or coram; the applicants are identified only indirectly through the supporting affidavit of the 2nd applicant and the respondents only descriptively.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege & another v Mwangi & another (Civil Appeal (Application) E118 of 2024) [2025] KECA 2142 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2142/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.