Mendambo & another v Maranya (Civil Application E017 of 2025) [2026] KECA 64 (KLR)
The bottom line
#The Court of Appeal paused their eviction from Watamu land, ruling that appeals with genuine issues deserve a fair hearing before people lose their homes.
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, absent a stay of execution, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The grounds in the draft memorandum of appeal - the treatment of the Letter of Allotment and the trial court's determination of unpleaded adverse possession - sufficiently demonstrate an arguable appeal.
The applicants identified grounds complaining that the learned Judge wrongly concluded the Letter of Allotment was open and not specific, and that the Judge extensively adjudicated on adverse possession, an issue not raised by the parties. Relying on the established principle that even one bona fide ground suffices, the Court found these grounds raised genuine issues requiring a reasoned response.
Whether the appeal would be rendered nugatory without a stay
If the applicants were evicted before the appeal was heard, the appeal would be rendered nugatory; the application was therefore merited.
The applicants and other occupants had erected homes and structures on the suit property and faced imminent eviction and demolition, which would leave them homeless and destitute. Applying the principle that the nugatory inquiry turns on reversibility and adequacy of damages, the Court held that eviction before the hearing would likely render the appeal useless and irreversible in practical effect.
Application brought under the wrong procedural provisions
Although the application was brought under the Civil Procedure Act and Civil Procedure Rules rather than Rule 5(2)(b) of the Court of Appeal Rules, the Court, invoking Article 159 of the Constitution, determined it on Rule 5(2)(b) principles.
The Court noted the applicants sought reliefs under Sections 14, 34 and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, in disregard of Rule 5(2)(b) of the Court of Appeal Rules which governs such relief in this Court. Nevertheless, applying the constitutional injunction against dwelling on procedural technicalities, the Court proceeded to determine the motion under Rule 5(2)(b) principles.
Legal principles established
#- Rule 5(2)(b) relief requires two concurrent requirements: an arguable appeal and that the appeal will be rendered nugatory unless the stay or injunction is granted.
- An arguable appeal need not be one that will succeed; a single bona fide ground suffices.
- The nugatory inquiry turns on whether the act sought to be stayed is reversible and, if not, whether damages would afford adequate compensation.
Court orders
#- 1.Stay of execution of the judgment delivered on 29th January 2025 in Malindi ELC Case No. E074 of 2022 and any subsequent orders emanating therefrom, pending the hearing and final determination of the intended appeal
- 2.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Malindi ELC Case No. E074 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application brought under Rule 22(1) and Order 42 Rule 6 of the Civil Procedure Rules 2010 and Sections 14, 34 & 63(e) of the Civil Procedure Act, treated by the Court as one under Rule 5(2)(b))
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 Notice of motion dated 14th April 2025 is merited and is allowed. Costs shall be in the intended appeal. It is so ordered.
An arguable appeal does not mean one that must ultimately succeed; rather, it is an appeal that is not frivolous and raises at least one genuine issue worthy of consideration and requiring a reasoned response from the respondent.
the nugatory inquiry turns on whether the act sought to be stayed is reversible, and if not, whether an award of damages would ofier adequate compensation to the aggrieved party
Issues in the judgment
#The names of the parties are given only for the Applicants; the Respondent is never identified by name in the judgment, and the title/case number of the application itself is not stated on the face of the judgment.
Internal date inconsistency: the judgment recites a Notice of Motion dated 14th April 2025 seeking stay of a judgment delivered on 29th January 2025, but is itself dated and delivered at Mombasa on 30th January 2026.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mendambo & another v Maranya (Civil Application E017 of 2025) [2026] KECA 64 (KLR)", Case Analysis (2026). Notice of Motion dated 14th April 2025 (Civil Application - Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/64/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.