Harriet Makira Matiri (deceased) v Kenneth Kirema Munene & 2 others
The bottom line
#Kenya's Court of Appeal refused to freeze execution of a land judgment, ruling that an arguable appeal alone isn't enough — you must also prove waiting would cause irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction under rule 5(2)(b) depends on a lodged notice of appeal
The application was competent because the record contained a Notice of Appeal dated 17th February, 2020 lodged on 18th February, 2020; absent such a notice the Court would have had no jurisdiction.
The Court, on its own perusal of the record, found a copy of the ELC judgment and a Notice of Appeal in the Record of Appeal, and held that had no notice of appeal been filed it would have had no business meddling in the High Court/ELC decision, adopting Omolo JA's explanation in the Safaricom case.
The nugatory-aspect test for a stay of execution
Even if the appeal is arguable on the existence of a trust over the suit land, the applicant failed to show the appeal would be rendered nugatory because the land was unlikely to be sold and could be restored if the appeal succeeded.
The Court accepted a possible arguable point challenging the ELC finding of a trust in favour of the respondents. However, on the nugatory limb, it reasoned that execution would not result in the sale of the land, and that restoration was possible upon success, so the balance did not favour a stay.
Legal principles established
#- The Court of Appeal has no jurisdiction under rule 5(2)(b) to grant a stay unless a notice of appeal, or an intention to appeal, has been manifested by lodgment of a notice of appeal in respect of the decision sought to be stayed.
Court orders
#- 1.The notice of motion dated 22nd January, 2025 is dismissed with costs
- On appeal from
- Environment and Land Court at Meru
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harriet Makira Matiri (deceased) v Kenneth Kirema Munene & 2 others", Case Analysis (2026). Civil Application dated 22nd January, 2025 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/660/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.