Gikore & another (Applying as the administrators of the Estate of Patrick Gikore Mwitari (Deceased)) v Wanjohi (Civil Application E107 of 2025) [2025] KECA 2165 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt enforcement of a land judgment because the winning party has lived on the land for decades, so nothing would be lost by enforcing it now.
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 intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The Court found the appeal arguable on the ground that the respondent allegedly did not plead the specific date of entry into possession, a matter of law and fact
The Court examined the five grounds in the memorandum of appeal, in particular the contention that the judge erred in allowing an adverse possession claim where the date of entry and possession was not pleaded. Applying the settled standard that an arguable appeal is not one that must succeed, the Court held the appeal was not frivolous and thus the first limb was satisfied.
Whether the appeal would be rendered nugatory absent a stay
The nugatory test was not satisfied because the respondent has been in open, continuous possession of the 5 acres for many years and remains in occupation, so a stay would not preserve anything for the applicants
The Court noted that the applicants had never been in possession of the disputed 5 acres since 1998, the respondent having been in exclusive occupation. On these peculiar facts, refusal of stay would not dispossess the applicants of anything nor destroy the subject matter of the appeal, so the appeal would not be rendered nugatory. The application was accordingly dismissed with costs abiding the appeal.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must satisfy the twin conjunctive conditions: the appeal is arguable and would be rendered nugatory if stay is not granted
- An arguable appeal need not be one that will necessarily succeed; it suffices that it is not frivolous
- The nugatory inquiry is fact-specific and each case is considered on its peculiar facts and circumstances
Court orders
#- 1.The notice of motion dated 22nd October 2025 is dismissed
- 2.Costs shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court, Nyahururu
- Nyahururu ELC OS No. E005 of 2023
- Jurisdiction invoked
- Section 3A and 3B of the Appellate Jurisdiction Act, Cap 9, and Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the judgment dated 1st October 2025 in Nyahururu ELC OS No. E005 of 2023 and consequential decree
The respondent has been in continuous occupation of the suit land for years and remains in occupation; the scales of justice tilt against a stay
Alternative order maintaining and preserving the status quo on the ground and in the register over LR No. Marmanet/North Rumuruti Block 2/9 (Ndurumo)
The application failed the nugatory-prong of the twin Rule 5(2)(b) test
Costs
The costs shall abide 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.
To succeed in an application for stay of execution, an applicant must satisfy the following twin conjunctive principles under Rule 5 (2) (b) of this Court’s Rules: the appeal is arguable; and would be rendered nugatory if stay is not granted.
Bearing in mind that an arguable appeal is not one that will necessarily succeed, we are not prepared to say that it is frivolous.
It is admitted that the respondent has been in occupation for years and is still in occupation. This being the position, we do not think an order of stay is appropriate in this case.
The scales of justice tilt against granting a stay order. The result is that the application dated 22nd October 2025 is dismissed. The costs shall abide the outcome of the appeal.
Issues in the judgment
#The judgment states the applicants filed a notice of appeal dated 8th October 2025 'against the ruling delivered on 1st October 2024' although the judgment appealed from was delivered on 1st October 2025; the earlier date appears to be a typographical error
Paragraph 6 describes the 1st October 2025 decision as a 'ruling' while the same paragraph and the application describe it as a 'Judgment' delivered after viva voce evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikore & another (Applying as the administrators of the Estate of Patrick Gikore Mwitari (Deceased)) v Wanjohi (Civil Application E107 of 2025) [2025] KECA 2165 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)) filed 22nd October 2025, Court of Appeal, Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2165/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.