Ng’ang’a v Lagat (Sued as the Administrator of Estate of Christopher Kimaru Lagat) (Civil Appeal (Application) E032 of 2026) [2026] KECA 1119 (KLR)
The bottom line
#The Court of Appeal refused to block an eviction pending appeal because the buyer of the land had already taken possession.
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 an arguable appeal under the arguability test in rule 5(2)(b) applications
- 2.Whether the appeal will be rendered nugatory if the interlocutory injunction is not granted (the nugatory test)
Key legal issues
#The twin tests for relief under rule 5(2)(b) of the Court of Appeal Rules
An applicant must establish both an arguable appeal and that the appeal will be rendered nugatory without the orders; both limbs must be satisfied.
The court restated the settled rule 5(2)(b) jurisdiction from Trust Bank v Investech Bank and Stanley Kang'ethe Kinyanjui v Tony Ketter: the jurisdiction is original and discretionary; arguability requires only that grounds are not frivolous and deserve full argument, without definitive findings on fact or law; and both the arguability and nugatory limbs must be met.
Whether the applicant met the nugatory test
She did not: the respondent had already taken possession of the suit land under the ELC eviction orders, and the applicant's bare assertion of possession was less satisfactory.
The applicant claimed she remained in occupation, but the respondent gave an elaborate account of having taken possession through eviction orders issued by the ELC, including ploughing the land. Balancing the two conflicting positions, the court preferred the respondent's evidence, so refusal of the injunction would not render the appeal nugatory.
Whether the appeal was arguable on res judicata and sub judice
The ground that the applicant's adverse possession claim was distinct from her son's was arguable, though its ultimate success was left to the full bench.
The gravamen of the intended appeal was that the applicant's claim before the ELC was distinct from that of her son, Sammy Kirwok Lagat, so the res judicata and sub judice bar was misplaced. Applying Kang'ethe Kinyanjui, an arguable appeal need not necessarily succeed; the court was satisfied the grounds were arguable but made no definitive findings.
Legal principles established
#- A rule 5(2)(b) applicant must satisfy both the arguability test and the nugatory test before stay or injunction orders can issue
- Giella v Cassman Brown principles for interlocutory injunctions do not govern stay/injunction applications in the Court of Appeal; rule 5(2)(b) does
- In assessing the nugatory test, where parties advance conflicting claims on the state of possession on the ground, the court balances the rival positions on their evidentiary quality
Court orders
#- 1.The application dated 19th March 2026 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Claim of adverse possession dismissed on 10th February 2026 (earlier: ELC Case No. 42 of 2017, Obaga J., judgment dated 20th March 2023)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Interlocutory injunction restraining the respondent from evicting the applicant from 0.9 acres of Moi's Bridge Block 2 (Tuiyobei)/72 pending appeal
The applicant satisfied the arguability limb but failed the nugatory limb, the respondent having already taken possession pursuant to the ELC eviction orders
Costs
Dismissed with costs to the respondent
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.
The conditions under which a rule 5(2)(b) application may be granted are two; first, that the applicant has an arguable appeal (the arguability test) and second, that the appeal will be rendered nugatory if the orders sought are not granted (the nugatory test). An applicant must satisfy the two limbs.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous.
Balancing the two rival positions, we find the respondent's position more satisfactory.
In the circumstances, the application dated 19th March 2026 fails and is dismissed with costs to the respondent.
DATED AND DELIVERED AT ELDORET THIS 12TH DAY OF JUNE, 2026.
Issues in the judgment
#The judgment states the applicant's son's originating summons as 'ELC Case No. 182 of 2018 (OS)' in one passage but 'ELC Case No. 182 of 2017 (OS)' in another
Internal chronology inconsistency: the applicant's supplementary affidavit (14th April 2026) and the respondent's replying affidavit (19th March 2026) predate the reference to Sammy Kirwok Lagat filing an application 'dated 11th December 2023' in this application, and the son's notice of appeal dated 21st March 2023 is described as arising from a judgment of 20th March 2023 while the pending appeal referenced is his, not the applicant's
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ang’a v Lagat (Sued as the Administrator of Estate of Christopher Kimaru Lagat) (Civil Appeal (Application) E032 of 2026) [2026] KECA 1119 (KLR)", Case Analysis (2026). Notice of motion dated 19th March 2026 in a pending appeal (Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1119/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.