Chemao & 3 others v Mathenge & 5 others (Civil Application E662, E663, E680 & E682 of 2025 (Consolidated)) [2026] KECA 263 (KLR)
The bottom line
#The Court of Appeal suspended the part of a High Court ruling that blocked new National Land Commission appointments, while the two serving commissioners keep their six-year terms.
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 first set of applications by members of the public without an identified stake were competently before the Court
- 2.Whether HOPS's applications were incompetent for seeking to stay orders not covered by its notices of appeal
- 3.Whether the intended appeals are arguable
- 4.Whether the appeals would be rendered nugatory absent stay
- 5.Whether the Court can grant stay or conservatory orders in respect of orders of certiorari and prohibition
Key legal issues
#Competence of Rule 5(2)(b) applications by persons claiming to act in the public interest
The applications were competent because the first set of applicants had annexed notices of appeal; any challenge to their locus or to the notices should be brought by way of a striking-out application.
Rule 5(2)(b) jurisdiction is contingent on a notice of appeal filed within 14 days under Rule 77. The first set of applicants annexed such notices dated 13th November 2025. If respondents believe applicants lack locus, the proper course is to apply to strike out the notice of appeal; absent such striking out, the applications stand as properly filed.
Whether a stay application may cover orders not specified in the notice of appeal
HOPS's applications were properly before the Court; Rule 5(2)(b) imposes no limitation restricting stay to the orders specified in the notice of appeal, and the Adam vs Jiir decision was inapplicable as it arose under the Election Petition Rules.
Rule 5(2)(b) allows stay 'on such terms as the Court may think just'. Rule 33 also empowers the Court to make incidental or consequential orders. Adam vs Jiir dealt with rule 6 of the Election Petition Rules, 2017, which had different requirements. The Court exercises original jurisdiction de novo in such applications.
Whether orders of certiorari and prohibition can be stayed or suspended pending appeal
It is not a hard and fast rule that certiorari and prohibition cannot be stayed; unlike the private-interest cases cited by the 1st respondents, these orders concern a constitutional commission and public interest, and conservatory orders suspending them were merited.
The precedents relied on by the 1st respondents involved decisions affecting private interests. Here the orders nullify recruitment to a constitutional commission whose terms had expired, impacting the public. The Court may deploy conservatory orders under Rule 5(2)(b) read with Sections 3A and 3B of the Appellate Jurisdiction Act, and the irreversible harm to the public from a non-operational Commission outweighed any prejudice to the 1st respondents.
Arguability and nugatory-ness of the intended appeals
The intended appeals raise arguable issues (proportionality of remedies, severability, nullification of unchallenged recruitment of the chairperson), and the resulting paralysis of the National Land Commission would cause irreversible public harm.
An arguable appeal need not succeed; a single triable issue suffices. The nullification of the entire recruitment process, including of positions unchallenged in the petitions, raised substantial questions. The Commission's functions, including compulsory acquisition of land for time-bound infrastructure projects, are currently halted, causing irreversible prejudice and monetary loss to the public.
Legal principles established
#- There is no rule barring the Court of Appeal from granting stay or conservatory orders in respect of orders of certiorari and prohibition; the Court has original jurisdiction and a wide discretion under Rule 5(2)(b) on such terms as it thinks just.
- Conservatory orders may be granted in Rule 5(2)(b) applications to serve the public interest and preserve the substratum of an appeal.
- A notice of appeal need not confine the scope of a Rule 5(2)(b) stay application to the precise orders appealed from; the Court may grant stay on such terms as the justice of the case demands.
Court orders
#- 1.A conservatory order suspending the operation of the High Court orders of 11th November 2025 in Petitions E646 of 2025 and E647 of 2025 in so far as they affect and relate to the vacant positions of the chairperson and only six commissioners of the National Land Commission, pending the hearing and determination of the appeals
- 2.The conservatory orders shall not affect the positions and tenure of Hon Esther Murugi Mathenge and Hon Tiya Galgalo Ali; the High Court declaration affirming their six-year term remains in force pending the intended appeals
- 3.Each party to bear their own costs of the four applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Constitutional Petition No. E646 of 2025 and No. E647 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
- Consolidated with
- Civil Application No. E663 of 2025, Civil Application No. E680 of 2025, Civil Application No. E682 of 2025
Relief refused
#Stay extending to the tenure of the 1st respondents
The applicants conceded the security of the 1st respondents' tenure; the conservatory order expressly excludes their positions
Costs
Each of the parties shall bear their costs of the applications in Civil Application No. E662 of 2025, E663 of 2025, E680 of 2025 and E682 of 2025.
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.
We accordingly grant a conservatory order suspending the operation of the orders of the High Court issued on 11th November 2025 in Nairobi High Constitutional Petition No. E646 of 2025 and Nairobi High Constitutional Petition No. E647 of 2025 in so far as they afiect and relate to the vacant positions of the chairperson and only six commissioners of the National Land Commission
For the avoidance of doubt the said conservatory orders shall not in any manner afiect the positions and tenure of Hon Esther Murugi and Hon. Tiya Galgalo as commissioners of the National Land Commission.
As this is a matter afiecting the public interest, each of the parties shall bear their costs of the applications
There is no prescription in Rule 5(2)(b) that limits the powers of the court to grant stay orders only with respect to the orders appealed from
conservatory orders can be granted by the Court in Rule 5(2)(b) applications and that the incorporation of conservatory orders into this Court’s understanding of its Rule 5(2) (b) jurisdiction is a logical and inevitable consequence of fidelity to the Constitution and the overriding principle.
Issues in the judgment
#The disposition lists Civil Application No.E662 of 2025 twice and omits Civil Application No. E663 of 2025, which is plainly an apparent typographical slip given the four applications throughout.
HOPS submissions are dated '26th November 2026', a date subsequent to the hearing and judgment dates, evidently a typographical error for 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemao & 3 others v Mathenge & 5 others (Civil Application E662, E663, E680 & E682 of 2025 (Consolidated)) [2026] KECA 263 (KLR)", Case Analysis (2026). Civil Application No. E662 of 2025, E663 of 2025, E680 of 2025 & E682 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/263/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.