Mahmood Abdalla Mohamed & 8 others v Gabriel Katana Kajoji & 8 others
The bottom line
#Kenya's Court of Appeal refused to pause a land case because the applicants showed only that their appeal was arguable, not that waiting would cause irreversible harm.
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, if stay is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The Court found the matters raised in the draft memorandum of appeal arguable and worthy of ventilation.
The Applicants contended the trial Judge failed to give effect to his earlier ruling of 23rd September 2024, overlooked uncontroverted evidence, disregarded documentary evidence, and failed to evaluate the record properly. On these grounds the Court found the intended appeal arguable, though arguability alone does not satisfy the Rule 5(2)(b) threshold.
Whether the intended appeal would be rendered nugatory if stay is not granted
The nugatory limb failed; compliance with the impugned order leaves the suit property intact and dispossesses no one.
The impugned ruling only required the Applicants to purge contempt by giving the 8th Respondent's family access to their homestead on the 2.4-acre portion, and granted leave to file a defence and counterclaim. The Court could not fathom how such access would render the appeal nugatory; the substratum of the appeal, the suit property, would remain intact.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; one limb alone is insufficient.
- An arguable appeal is not one that must succeed, but one presenting at least one genuine point of law or fact deserving consideration; a single arguable issue suffices if the nugatory limb is met.
Court orders
#- 1.The application against the 1st to 7th Respondents was marked as withdrawn
- 2.The Notice of Motion dated 4th April 2025 is dismissed with costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Malindi
- Malindi ELC Case No. 99 of 2019 (As Consolidated with Malindi ELC Case No. 139 of 2015 and Malindi ELC Case No. 28 of 2020, formerly Mombasa ELC Case No. 93 of 2014)
- Jurisdiction invoked
- Rules 5(2)(b), 47 and 49 of the Court of Appeal Rules; Sections 3, 3A, 3B of the Appellate Jurisdiction Act
Relief refused
#Stay of execution of the ruling and order of 26th March 2025
Applicants failed to establish that the intended appeal would be rendered nugatory
Stay of further proceedings in the consolidated ELC suits
Threshold under Rule 5(2)(b) not met; both limbs must be demonstrated
Injunction restraining the Respondents from entering, occupying or dealing with the suit property
Compliance with the impugned order neither dispossesses the Applicants nor authorises irreversible acts
Costs
The Notice of Motion dated 4th April 2025 is dismissed "with costs in the appeal" (as stated in the judgment)
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, it must be shown that the appeal, or intended appeal, raises an arguable issue; and second, the applicant must demonstrate that, if stay is not granted, the appeal will be rendered nugatory.
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
Invariably, we are not able to fathom how granting access to, and from, their homesteads on the suit property will render the appeal nugatory.
the Notice of Motion dated 4th April 2025 lacks merit and is hereby dismissed with costs in the appeal.
It is so ordered.
Issues in the judgment
#Date of impugned ruling inconsistently stated
Final orders reference different rulings than the impugned decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mahmood Abdalla Mohamed & 8 others v Gabriel Katana Kajoji & 8 others", Case Analysis (2025). Civil Application E027 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2218/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.