Kathuma v Musimba (Civil Application E599 of 2025) [2026] KECA 820 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a forced land transfer pending appeal, but the stay lapses if the appeal isn't filed within 60 days.
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 demonstrated that the intended appeal is arguable
- 2.Whether, if stay is not granted, the intended appeal would be rendered nugatory
- 3.Whether the applicant is entitled to a temporary injunction and/or conservatory orders pending appeal
Key legal issues
#Whether the intended appeal was arguable
The court found multiple arguable grounds: validity of the 10-acre sale, whether the sale was of 5 or 10 acres, alleged forgery or fraud, and alleged misapprehension of evidence by the trial court.
Applying the Kang'ethe Kinyanjui test, the court held each of the disputed issues — the validity of the 10-acre sale agreement over parcel 207, whether the transaction was for 5 acres (parcel 208) or 10 acres (parcel 207), forgery or fraud in the land transaction, and alleged misapprehension of evidence — raised bona fide issues warranting consideration on appeal. Each issue alone sufficed under the single-arguable-issue principle.
Whether the appeal would be rendered nugatory absent stay
The nugatory test was satisfied: if stay were not granted, the suit property would be transferred to the respondent who might take it out of the court's jurisdiction.
Although the applicant remained registered owner, third parties were active on the land. The court reasoned that without a stay the property would be transferred to the respondent, who could possibly remove it from the court's jurisdiction, thereby rendering a successful appeal worthless. The respondent was already in possession, but the risk of transfer and potential alienation established the nugatory ground. The negative-order objection was rejected because the order required the applicant to transfer title.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must demonstrate that the intended appeal is arguable, in the sense that it raises bona fide issues, and that if stay is not granted and the appeal succeeds, it would be rendered nugatory.
- A single arguable issue suffices for the purposes of an application for stay.
- A positive order to transfer property is capable of being stayed; the negative-order doctrine does not apply where the applicant was ordered to transfer title.
Court orders
#- 1.Stay of execution of the judgment and decree issued on 2nd October 2025 by the ELC Court at Makueni in ELC No. E040 of 2022, in terms that the applicant's transfer of parcel 207 is stopped until the intended appeal is heard and determined
- 2.Applicant directed to file and serve the appeal within 60 days, failing which the stay order shall automatically lapse
- 3.Costs to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC No. E040 of 2022
- Jurisdiction invoked
- Rule 5(2) of the Court of Appeal Rules, 2022
Relief refused
#Deposit of rental proceeds into a joint account of the parties
Not addressed in the final orders; the court granted stay on the transfer of the suit property only
Costs
Costs will abide the outcome of the appeal.
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.
Consequently, we grant the stay of the execution of the judgment and decree issued on 2nd October 2025 by the ELC Court at Makueni in ELC No. E040 of 2022 in terms that the applicant’s transfer of parcel 207 is stopped until the intended appeal is heard and determined.
So that the applicant does not go into slumber, he is directed to file and serve the appeal within 60 days from today, failing which the stay order shall automatically lapse.
Costs will abide the outcome of the appeal.
Issues in the judgment
#The judgment heading/case number is not stated; the application number must be inferred from the record (the notice of appeal was dated 4th October 2025 and the motion dated 7th October 2025). The respondent is also inconsistently described as 'his witnesses' in one passage.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathuma v Musimba (Civil Application E599 of 2025) [2026] KECA 820 (KLR)", Case Analysis (2026). Civil Application No. E of 2025 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/820/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.