Babu v Nderu (Sued as Administrator of the Estate of Gacheru Kanungu) (Civil Application E702 of 2024) [2026] KECA 439 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land eviction order because the appellant provided no evidence of legal errors in the judgment he was appealing.
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 applicant has satisfied the criteria for stay of proceedings and stay of execution of the ELC judgment and decree pending hearing of Court of Appeal Civil Application No. NAI. E095 of 2024
- 2.Whether the applicant has satisfied the criteria for stay of proceedings and stay of execution of the ELC judgment and decree pending hearing of Civil Appeal No. E922 of 2023
- 3.Whether the application, duplicating a pending earlier application, amounts to an abuse of the process of the Court
Key legal issues
#Whether the twin principles of arguability and nugatory effect were satisfied for a stay of execution and stay of proceedings
They were not: no arguable grounds were demonstrated and the appeal's nugatory risk was not established; the application was dismissed.
The judgment of the ELC was not exhibited and the specific grievances with it were not identified in the application or submissions. All the applicant asserted was a risk of eviction. Without material showing the errors of the judgment, the Court could not assess arguability, and the discretionary threshold in Butt v Rent Restriction Tribunal was not met.
Whether the application was an abusive duplication of the earlier pending application No. NAI. E095 of 2024
The Court found the present application duplicated the earlier pending application and could well amount to an abuse of process.
The applicant had already moved the Court by an application dated 29th February 2024 seeking stay of execution of the same judgment, which remained pending. Rather than pursue it, he filed the present application seeking effectively the same orders, which the Court viewed as a duplication and potential abuse of process.
Legal principles established
#- An applicant for stay pending appeal must satisfy the Court that the intended appeal is arguable and that if the orders sought are refused and the appeal eventually succeeds, it will have been an exercise in vain.
- A duplicate application seeking the same relief as an application already pending before the Court may amount to an abuse of the process of the Court.
- The applicant must place before the Court material demonstrating the errors in the judgment so that the arguability of the appeal can be assessed.
Court orders
#- 1.The application dated 18th December 2024 fails and is dismissed
- 2.No orders as to costs
- 3.The ruling is delivered pursuant to Rule 33(4) of the Court of Appeal Rules owing to the demise of Justice F. Ochieng, JA
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC) at Nairobi
- ELC Case No. 270 of 2019
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, delivered pursuant to Rule 33(4) of the Court of Appeal Rules
Relief refused
#Stay of proceedings and stay of execution of the judgment and decree of 24th May 2023 in ELC Case No. 270 of 2019 pending hearing of Court of Appeal Civil Application No. NAI. E095 of 2024
The applicant did not demonstrate that the intended appeal is arguable or that it would be rendered nugatory; the judgment appealed from was not on the record
Stay of proceedings and stay of execution of the judgment and decree of 24th May 2023 in ELC Case No. 270 of 2019 pending hearing of Civil Appeal No. E922 of 2023
Same failure of proof, plus duplication of the earlier pending application amounting to possible abuse of process
Costs
No orders as to costs
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 applications of this nature, the applicant is enjoined to satisfy the Court that the intended appeal is arguable and that if the orders sought are refused, and the appeal eventually succeeds, it will have been an exercise in vain
All in all, we are not persuaded that this is a proper case for the exercise of the Court’s discretion in favour of the applicant. Accordingly, the application dated 18th December 2024 fails and is dismissed. We make no orders as to costs.
the present application is a duplication of the earlier application pending before the Court being Civil Application No. NAI. E095 of 2024. In the circumstances, the present application may well amount to an abuse of the process of the Court.
Issues in the judgment
#The judgment of the ELC appealed from was not part of the record; the Court noted it expressly
The respondent is never named in the ruling, and the ruling is delivered under Rule 33(4) following the demise of a bench member, Justice F. Ochieng, who does not appear among the signing judges
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Babu v Nderu (Sued as Administrator of the Estate of Gacheru Kanungu) (Civil Application E702 of 2024) [2026] KECA 439 (KLR)", Case Analysis (2026). Civil Application (ruling on application dated 18th December 2024) arising from Court of Appeal Civil Application No. NAI. E095 of 2024 and Civil Appeal No. E922 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/439/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.