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Court of AppealDismissedRule 5(2)(b) Application dated 5th July, 2024 (Court of Appeal, Nyeri)

Luka v Waikayu (Civil Appeal (Application) E062 of 2024) [2026] KECA 322 (KLR)

Court of Appeal of Kenya
27 February 2026
1,192 words in judgment
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The bottom line

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The Court of Appeal dismissed a landowner's bid to halt execution of a judgment, because he claimed loss but never proved it.

What this practically means

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Executive summary

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By Notice of Motion dated 5th July, 2024 under rule 5(2)(b) of the Court of Appeal Rules, 2022, Peter Ndungu Luka sought stay of execution and/or injunction, or alternatively a conservatory order over land parcel Loc.6/Gikarangu/773, pending an intended appeal. The intended appeal challenges the decision of Gacheru, J in ELCA No. E020 of 2023, which on 8th February, 2024 dismissed the applicant's appeal and upheld the trial court's judgment of 8th June, 2023 finding that he held the suit land in trust for himself and three relatives. The applicant argued the appeal was arguable and would be rendered nugatory if the subdivision and execution proceeded. The respondent countered that there were no positive orders capable of being stayed, execution was underway with the land already being subdivided, similar applications had been dismissed in the courts below, and the applicant had delayed. The Court framed a single issue: whether the twin principles of an arguable appeal and nugatory appeal were satisfied. It found the grounds - notably on exclusive possession since 1979, registered ownership and section 26 of the Land Registration Act - were arguable. However, the applicant failed to demonstrate any specific loss that could not be compensated by damages, and execution had substantially commenced. The application was accordingly dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicant has satisfied the requisite twin principles for the grant of the orders sought, namely an arguable appeal and that the appeal would be rendered nugatory if the orders are not granted

Key legal issues

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01

Whether the appeal is arguable

Holding

The grounds challenging the finding of a customary trust and the interpretation of section 26 of the Land Registration Act were arguable

Reasoning

The court perused the memorandum of appeal, which faulted the first appellate judge for ignoring exclusive possession since 1979, registered ownership, and section 26 of the Land Registration Act. Applying the settled standard that an arguable appeal need not succeed, the panel found the grounds raised were arguable, satisfying the first limb of the rule 5(2)(b) test.

p. 2
02

Whether the appeal would be rendered nugatory if the orders are not granted

Holding

The nugatory limb failed; the application was dismissed

Reasoning

The applicant asserted irreparable loss but did not disclose or demonstrate its nature. Execution of the lower court decree was already underway, with the survey team subdividing the land, so the Court could not act in vain. The alleged loss was not shown to be uncompensable by damages, so the second twin principle was not established.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if the orders sought are not granted; an arguable appeal need not be one that will necessarily succeed
  • Loss capable of adequate compensation by an award of defeats the nugatory limb; a mere assertion of loss is insufficient and the Court will not act in vain where execution has substantially occurred

Court orders

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  1. 1.The applicant's application dated 5th July, 2024 (referred to in the order as dated 9th July, 2024) was dismissed
  2. 2.Costs of the application awarded to the respondents

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
ELCA No. E020 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the decree and/or injunction pending appeal

Though the appeal was arguable, the applicant failed to demonstrate the appeal would be rendered nugatory; the loss claimed was not demonstrated and the decree had substantially been executed

p. 3

Alternative conservatory order over Loc.6/Gikarangu/773

Same failure to establish the nugatory limb; nature of the alleged loss was not disclosed

p. 3

Costs

Application dismissed with costs to the respondents

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.

The upshot is that the applicant’s application dated 9th July, 2024, lacks merit and is accordingly dismissed with costs to the respondents.
p. 3Final orders - dismissal of the rule 5(2)(b) application
The only issue for determination is whether the applicant has satisfied the requisite twin principles for the grant of the orders sought by demonstrating that he has an arguable appeal and that, should the orders not be granted and the appeal eventually succeeds, his appeal would be rendered nugatory.
p. 2Twin principles under rule 5(2)(b)
Bearing in mind that an arguable appeal must not be one which will necessarily succeed, we find that the grounds raised are arguable.
p. 2Standard for arguability
This Court cannot act in vain.
p. 3Court will not grant futile relief where execution is substantially complete

Issues in the judgment

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minor

The application is described as dated 5th July, 2024 at the opening, but the final order refers to an application dated 9th July, 2024

minor

The judgment text shows a delivery date of 27th February, 2026, which postdates the hearing on 18th February, 2025, an unusually long interval that may be a typographical error for 2025

minor

The respondent is not named anywhere in the judgment text; only the applicant is identified by name

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, "Luka v Waikayu (Civil Appeal (Application) E062 of 2024) [2026] KECA 322 (KLR)", Case Analysis (2026). Rule 5(2)(b) Application dated 5th July, 2024 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/322/eng@2026-02-27

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