Makara & 3 others v Muchumersun
The bottom line
#The Court of Appeal refused to stop a landowner from using disputed land because the appellants never explained what their appeal was actually about.
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 under rule 5(2)(b)
- 2.Whether the appeal would be rendered nugatory if the interim injunction is denied
Key legal issues
#Arguability of the intended appeal
The appeal was not shown to be arguable because the applicants did not annex a draft memorandum of appeal or otherwise indicate the issues they pursue on appeal
The court applied Somak Travels and Stanley Kang'ethe: one arguable point suffices and it need not succeed, but it must be identified. The applicants merely asserted animosity, change of soil texture and loss without setting out grounds, so the court could not assess arguability.
Nugatory value of the appeal
No substantial loss was demonstrated; there was no imminent eviction or alienation and damages would be an adequate remedy
Relying on Reliance Bank v Norlake and Mukuma v Abuoga, the court weighed competing hardship. The respondent has occupied the land for over 50 years, construction is complete, and no imminent danger of eviction or sale to third parties exists, so the appeal would not be rendered nugatory.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if denied
- A single bona fide arguable ground suffices, but none was demonstrated where the applicants did not disclose the nature of their intended appeal
Court orders
#- 1.The notice of motion dated 24th May 2024 seeking a temporary injunction is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Migori
- ELC Case No. 6 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; sections 1(A & B), 3, 3A, 18 & 63(E) of the Civil Procedure Act; Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Article 159 of the Constitution
Relief refused
#Interim temporary injunction restraining the respondent from cultivating, fencing, building structures, committing waste, alienating or dealing with parcel Bukira/Bwisaboka/852 pending the appeal
Applicants satisfied neither limb of rule 5(2)(b): no arguable point demonstrated and no nugatory risk shown
Costs
The application is dismissed with costs to the 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.
The upshot is that the application lacks merit and is dismissed with costs to the respondent.
While our jurisprudence requires the showing of even a single arguable issue, none has been demonstrated in the present case.
it is common ground that there is no immediate or imminent danger of the eviction of the applicants or the suit land being put beyond their reach by being sold to third parties.
What the applicant needs to demonstrate to obtain the orders sought is the fulfillment of two requirements first, that the appeal is arguable, and second, that it is likely to be rendered nugatory if the application is denied
Issues in the judgment
#Chronology inconsistency: application said to have begun in October 2024 though the motion is dated 24th May 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makara & 3 others v Muchumersun", Case Analysis (2025). Civil Appeal (Application) E242 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2193/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.