Malit & 8 others v Kemboi (The administrator of the Estate of the Late Joseph Kipkemboi Maritim) (Civil Appeal (Application) E067 of 2025) (10 December 2025) (Reasons) [2025] KECA 2171 (KLR)
The bottom line
#The Court of Appeal refused to pause an eviction because the applicants had withdrawn their notice of appeal, so no valid appeal existed to protect.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated an arguable appeal
They did not; no memorandum of appeal was annexed and no arguable ground was discernible from the supporting affidavit.
The Court restated that an arguable appeal need not be one that would succeed, and one arguable ground suffices, citing Chemaringo v Kibet. However, the applicants failed to annex the memorandum of appeal, and an examination of the supporting affidavit disclosed no arguable ground. The merits of the appeal remain for the hearing bench, but without the first limb established the Court did not consider the nugatory limb.
Whether the Court's jurisdiction was invoked
It was not; there was no evidence of a filed notice of appeal, and the applicants admitted withdrawing their earlier notice of appeal to pursue out-of-court negotiations.
Stay under rule 5(2)(b) presupposes a pending appeal. The notice of appeal and memorandum of appeal referenced by the applicants were not annexed to the application. On their own admission, the previously filed notice of appeal had been withdrawn under rule 83 of the Court's Rules. Absent a notice of appeal, there was no pending appeal to protect and the application could not stand.
Legal principles established
#- To succeed on a rule 5(2)(b) stay application, an applicant must satisfy twin conjunctive principles: the appeal is arguable and it would be rendered nugatory absent stay.
- An arguable appeal need not be one that will succeed; demonstrating at least one arguable ground suffices.
- A litigant who has not filed (or has withdrawn) a notice of appeal has not invoked the appellate court's jurisdiction, and a stay application on that footing is a non-starter.
Court orders
#- 1.Dismissal of the applicants' Notice of Motion dated 31st July 2025 seeking stay of execution
- 2.Costs of the application to the respondent
- On appeal from
- Environment and Land Court at Eldoret
- ELC No. 156 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2022 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malit & 8 others v Kemboi (The administrator of the Estate of the Late Joseph Kipkemboi Maritim) (Civil Appeal (Application) E067 of 2025) (10 December 2025) (Reasons) [2025] KECA 2171 (KLR)", Case Analysis (2025). Civil Appeal (Application) E067 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2171/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.