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Court of AppealAllowedNotice of Motion dated 20th November, 2025 in Kisumu Civil Appeal No. E253 of 2024

Mogeni & 2 others v Tinega (Sung as the Legal Representative of the Estate of Nahashon tinega Kurura) (Civil Appeal (Application) E253 of 2024) [2026] KECA 631 (KLR)

Court of Appeal of Kenya
13 March 2026
HOH. A. OmondiLKL. KimaruJNJoel Ngugi
1,612 words in judgment
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The bottom line

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The Court of Appeal halted an eviction from Nyamira land, ruling that evicting long-term occupants before their appeal is heard could cause damage money can't fix.

What this practically means

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Executive summary

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This is a single-judgment decision of the Court of Appeal at Kisumu (H. A. Omondi, L. Kimaru and Joel Ngugi, JJAA) on a Notice of Motion dated 20th November 2025 brought under Rule 5(2)(b) of the Court of Appeal Rules. The Applicants sought stay of execution of the judgment and decree of the Environment and Land Court at Nyamira (M. Kamau, J.) delivered on 25th July 2024 in ELC No. 109 of 2021, in which the Respondent, as legal representative of the estate of Nahashon Tinega Kurura, obtained orders for possession of land parcel SFT/EKERUBO/26 in a Nyamira settlement scheme. The Applicants, who claim to have occupied some twenty acres of the suit property for over three decades with homes and farming activities, pending Kisumu Civil Appeal No. E253 of 2024 challenging the trial court's treatment of adverse possession and evidence evaluation. Applying the twin principles in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, the Court found at least one arguable ground, since questions of adverse possession and evidential evaluation are not trivial. On the nugatory limb, the Court held that damages would be inadequate because eviction would involve demolition of homes and displacement of families, and restoration of the status quo ante would be extremely difficult and in some respects impossible. The Court allowed the motion, stayed execution of the ELC judgment and decree pending the appeal, and ordered that costs of the application abide the outcome of the appeal. The application was allowed in its entirety; the decision below was not itself disturbed, stay pending appeal being the relief sought and granted.

Questions the Court framed

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

  1. 1.Whether the appeal is arguable under the first limb of the Rule 5(2)(b) test
  2. 2.Whether the appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Arguability of the appeal

Holding

The Applicants demonstrated at least one arguable ground concerning adverse possession and evaluation of evidence.

Reasoning

The Court found that the challenge to the trial court's evaluation of evidence of over thirty years' occupation and its application of adverse possession principles, together with the alleged failure to consider documentary evidence on allocation within the settlement scheme, raised bona fide questions belonging properly to the appellate court's province and not trivial or frivolous.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

Damages would not be an adequate remedy; eviction would irreversibly alter the subject matter, so the nugatory limb was satisfied.

Reasoning

The Applicants' uncontested deposition showed decades of occupation with homes and farming livelihoods on the land. Eviction would mean demolition of homes and displacement of families, and restoration of the status quo ante would be extremely difficult and in places impossible even if the appeal succeeded. The Court held that this is precisely the situation the Rule 5(2)(b) jurisdiction guards against.

p. 3

Legal principles established

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  • Rule 5(2)(b) jurisdiction is original and discretionary, exercised to preserve the subject matter of an appeal, and requires the applicant to satisfy the twin tests of arguability and nugatory-ness.
  • An arguable appeal is not one that must succeed but one that is not frivolous and ought to be argued fully.
  • Where eviction before the hearing of an appeal would irreversibly alter the subject matter, damages are not an adequate remedy and the appeal would be rendered nugatory.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment and Land Court at Nyamira delivered on 25th July, 2024 in Nyamira ELC No. 109 of 2021 pending the hearing and determination of Kisumu Civil Appeal No. E253 of 2024
  2. 2.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.

HO
majority
LK
majority
JN
majority
On appeal from
Environment and Land Court at Nyamira
ELC No. 109 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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 Notice of Motion dated 20th November, 2025 is, therefore, allowed. There shall be a stay of execution of the judgment and decree of the Environment and Land Court at Nyamira delivered on 25th July, 2024 in Nyamira ELC No. 109 of 2021 pending the hearing and determination of Kisumu Civil Appeal No. E253 of 2024.
p. 4Final orders - stay of execution granted
In balancing the competing interests of the parties, we are satisfied that the interests of justice favour preservation of the status quo pending determination of the appeal.
p. 4Balancing of interests and preservation of status quo
Even if the appeal were ultimately to succeed, restoration of the status quo ante would be extremely difficult and in some respects impossible.
p. 3Nugatory principle - irreversibility
Costs of the application shall abide the outcome of the appeal.
p. 4Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mogeni & 2 others v Tinega (Sung as the Legal Representative of the Estate of Nahashon tinega Kurura) (Civil Appeal (Application) E253 of 2024) [2026] KECA 631 (KLR)", Case Analysis (2026). Notice of Motion dated 20th November, 2025 in Kisumu Civil Appeal No. E253 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/631/eng@2026-03-13

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