Chief of the Kenya Defence Forces & another v Arigele & 18 others (Civil Application E032 of 2025) [2026] KECA 326 (KLR)
The bottom line
#The Court of Appeal paused a High Court order requiring the Defence Ministry to vacate community-claimed land and pay Kshs. 30 million until the appeal is decided.
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 the intended appeal will be rendered nugatory if stay of execution is not granted
- 3.Whether public interest favours the grant of a stay
Key legal issues
#Whether the intended appeal is arguable
The threshold for arguability is low; the grounds raised in the draft memorandum are not idle, so the appeal is arguable.
The court reiterated that the threshold for an arguable appeal is low and the applicant need show only one arguable point, not a multiplicity, and need not show the point will succeed. The draft memorandum raised grounds including whether the suit property is public or community land and whether the High Court applied wrong principles in awarding Kshs. 30,000,000 in damages. Those grounds met the arguability test.
Whether the appeal would be rendered nugatory absent a stay
The nugatory limb was satisfied, given KDF occupation and structures erected with public funds whose loss may not be recoverable if the appeal succeeds.
The court acknowledged the respondents' contention that the structures on the suit property were temporary and that possession could be reasserted if the appeal succeeded. However, it found that public funds had been expended because KDF is funded from public coffers, and that loss to the public may not be recoverable in the likelihood of a successful appeal, tipping the balance in favour of a stay.
Whether public interest favours granting the stay
Public interest militates in favour of granting the stay, given KDF's role in national security and that the legal questions raised remain for determination on appeal.
Applying the Munya v Kithinji dictum, the court held that KDF is a public body charged with ensuring the security and integrity of the country's resources, funded by public resources. Whether KDF adhered to legal processes, including whether the suit property is community or public land, remain matters for determination on appeal. National security and public interest concerns therefore supported the grant of stay.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory absent a stay; public interest is an additional consideration.
- An applicant need not show a multiplicity of arguable points; one arguable point suffices, and the applicant need not show the point would succeed.
- In stay applications courts ought to consider whether it would be in the public interest that a stay be granted.
Court orders
#- 1.Stay of execution of the High Court judgment delivered on 19th July 2024 granted pending the hearing and determination of the appeal
- 2.Costs of the application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rules 5(2)(b), 41, 43, 44, 45 and 47 of the Court of Appeal Rules; sections 3, 3A & 3B of the Appellate Jurisdiction Act; Article 50 of the Constitution
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.
In our considered view, public interest militates in favour of granting the orders of stay pending hearing and determination of the appeal. We allow the application.
Costs of the application will abide by the outcome of the appeal.
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
the courts ought to consider the condition whether it would be in public interest that the order of stay be granted.
an applicant need not show a multiplicity of arguable points, as one arguable point would sufice.
Issues in the judgment
#The respondent's submission records an admission that land in Marsabit County is community land held in trust by the County Government, yet the applicants contend the suit property is public land; the court did not resolve this on the merits, deferring it to the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chief of the Kenya Defence Forces & another v Arigele & 18 others (Civil Application E032 of 2025) [2026] KECA 326 (KLR)", Case Analysis (2026). Notice of motion dated 17th March 2025 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/326/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.