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Court of AppealDismissedCivil Application E027 of 2025

Mahmood Abdalla Mohamed & 8 others v Gabriel Katana Kajoji & 8 others

Court of Appeal
19 December 2025
4,242 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA) on a Notice of Motion dated 4th April 2025 by the Applicants seeking stay of execution of a ruling of the Environment and Land Court at Malindi (Njoroge, J.) delivered on 26th March 2025, stay of further proceedings in consolidated ELC suits, and an injunction pending an intended appeal. The dispute concerns plot LR. No. MN/11/783 at Kikambala, in which the Applicants are registered proprietors and the Respondents' family claims occupation of a 2.4-acre homestead portion. The impugned ruling allowed substitution of a deceased 8th Respondent, granted leave to file a defence and counterclaim, and directed the Applicants to purge contempt of orders of 23rd March 2021 and 9th December 2021 by giving the family access to their homestead. Applying the settled Rule 5(2)(b) test, the Court found the intended appeal arguable but held the nugatory limb failed: compliance with the impugned order neither dispossessed the Applicants nor authorised irreversible acts, and the substratum of the appeal, the suit property, would remain intact. The application against the 1st to 7th Respondents was marked withdrawn, and the motion was dismissed with costs in the appeal. The decision below was not disturbed; the ruling binds no issue of general principle beyond restating the cumulative two-limb threshold for stay pending appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the matters raised in the draft memorandum of appeal arguable and worthy of ventilation.

Reasoning

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.

p. 7
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The nugatory limb failed; compliance with the impugned order leaves the suit property intact and dispossesses no one.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The application against the 1st to 7th Respondents was marked as withdrawn
  2. 2.The Notice of Motion dated 4th April 2025 is dismissed with costs in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

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

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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

p. 7

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

p. 7

Costs

The Notice of Motion dated 4th April 2025 is dismissed "with costs in the appeal" (as stated in the judgment)

Quotable passages

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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.
p. 6Rule 5(2)(b) threshold
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
p. 6Cumulative requirement of both limbs
Invariably, we are not able to fathom how granting access to, and from, their homesteads on the suit property will render the appeal nugatory.
p. 7Nugatory limb not established
the Notice of Motion dated 4th April 2025 lacks merit and is hereby dismissed with costs in the appeal.
p. 7Final orders - dismissal
It is so ordered.
p. 8Disposition

Issues in the judgment

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minor

Date of impugned ruling inconsistently stated

minor

Final orders reference different rulings than the impugned decision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.