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Court of AppealPartially AllowedApplication dated 31st July 2025 (rule 5(2)(b), Court of Appeal Rules, 2022)

Oyugi & 2 others (Suing as the Administrators of the Estate of Hezekiah Nelson Oyugi - Deceased) v Sherman & another (Civil Application E476 of 2025) [2026] KECA 236 (KLR)

Court of Appeal
13 February 2026
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped the sale of a Lavington property pending appeal, but refused to pause the ongoing land case.

What this practically means

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Executive summary

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This was an interlocutory application under rule 5(2)(b) of the Court of Appeal Rules, 2022 by the administrators of the estate of Hezekiah Nelson Oyugi, seeking an injunction to restrain the 1st respondent from dealing with LR No. 209/4491, Lavington, pending their intended appeal, and a stay of proceedings in Nairobi ELC Case No. 1517 of 1998. The Environment and Land Court (Angote, J) had, on 10th July 2025, dismissed their suit, holding that a constructive trust arose in favour of the 1st respondent, who had paid the full purchase price, taken long-standing possession and obtained registration. The Court of Appeal (Kairu, Ngugi and Nyamweya, JJA) applied the settled twin principles: an applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent the orders. The court found two grounds arguable - determination of the suit on an unpleaded constructive trust, and the finding that the applicants procured a forged court order effecting the transfer. On nugatory value, the court noted the disputed value of the property (Kshs.350-400 million against a purchase price of Kshs.10 million) and, decisively, that the 1st respondent had not deposed to her ability to compensate the applicants in damages should she dispose of the property and the appeal succeed. It granted an injunction preserving the suit property but declined to stay proceedings before the ELC, and ordered that costs of the application abide the outcome of the appeal. Judgment delivered at Nairobi on 13th February 2026.

Questions the Court framed

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

  1. 1.Whether the applicants have an arguable appeal
  2. 2.Whether, absent the orders sought, the intended appeal, if successful, will be rendered nugatory
  3. 3.Whether a stay of proceedings before the ELC should issue

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal raised at least two arguable issues, including determination of constructive trust without a plea and the finding on a forged court order.

Reasoning

The court examined the grounds in the draft memorandum of appeal, highlighted by counsel, and identified two grounds of substance: that the trial court determined the suit on an unpleaded constructive trust, and that it found the applicants procured a forged court order effecting the transfer. Grounds of that character merit consideration by the Court and satisfy the first limb of the rule 5(2)(b) test.

p. 3
02

Nugatory value and preservation of subject matter

Holding

Given the 1st respondent did not depose to her ability to compensate in damages, preservation of the suit property was merited.

Reasoning

The parties disputed the value of the land (applicants: Kshs.350-400 million; respondent: purchase price of Kshs.10 million plus ascertainable rent). The decisive consideration was that the 1st respondent gave no evidence of her ability to compensate the applicants in damages should she dispose of the property and the appeal succeed. The subject matter being land, potentially irreversible disposal justified an injunction preserving it pending appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two principles: an arguable appeal, and that the appeal will be rendered nugatory absent the orders sought.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible and, if not, whether damages would be an adequate remedy.

Court orders

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  1. 1.An injunction restraining the 1st respondent from transferring or otherwise disposing of the suit property pending hearing and determination of the applicants' appeal
  2. 2.Refusal of stay of proceedings in Nairobi ELC Case No. 1517 of 1998
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Nairobi
Nairobi ELC Case No. 1517 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of proceedings in Nairobi ELC Case No. 1517 of 1998

The court was not satisfied that continuation of post-judgment proceedings before the ELC would render the appeal nugatory

p. 3

Costs

The costs of the application shall abide the outcome of the appeal.

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.

Accordingly, we hereby grant an injunction restraining the 1st respondent from transferring or otherwise disposing of the suit property pending hearing and determination of the applicants' appeal.
p. 3Final orders - injunction pending appeal
The costs of the application shall abide the outcome of the appeal.
p. 3Costs
First, that it has an arguable appeal and, secondly, that absent the orders sought, the intended appeal, if successful, will be rendered nugatory
p. 3Rule 5(2)(b) twin principles
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible; and if not reversible, whether damages would be an adequate remedy
p. 3Nugatory test

Issues in the judgment

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minor

The judgment records the applicants submitting the property value 'as at 1990' for the respondent, but the agreement for sale referenced elsewhere is dated 13th January 1998 - the judgment itself notes 'while the respondent places it at the purchase value as at 1990'.

minor

The 1st respondent's afidavit is described as opposing the application, but the opening paragraph describes the deponent as 'she' while the application is described as supported by the 2nd applicant; the parties' full names are not consistently given in the judgment copy.

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, "Oyugi & 2 others (Suing as the Administrators of the Estate of Hezekiah Nelson Oyugi - Deceased) v Sherman & another (Civil Application E476 of 2025) [2026] KECA 236 (KLR)", Case Analysis (2026). Application dated 31st July 2025 (rule 5(2)(b), Court of Appeal Rules, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/236/eng@2026-02-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.