Ole Kisua & 2 others v Kisanda Kilanda Enterprises (Civil Application E010 of 2026) [2026] KECA 1166 (KLR)
The bottom line
#Kenya's Court of Appeal refused to block a boundary-fixing order, finding that reversible actions backed by damages do not justify staying a judgment pending appeal.
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 intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory if an injunction/stay is not granted pending appeal
Key legal issues
#Arguability of the intended appeal
The draft memorandum raising 19 grounds, including jurisdiction and the legality of the impugned order, showed a single arguable ground sufficient to satisfy the first limb.
The Court applied the settled principle that an arguable appeal need not be one that will ultimately succeed; the applicant need demonstrate only one arguable ground. Without delving into merits, the Court was satisfied that the grounds on jurisdiction and legality of the order were arguable, leaving the question of success to the bench that will hear the appeal.
Whether the appeal would be rendered nugatory absent an injunction/stay
No: the trial court's order merely directed the Land Registrar to fix the boundary between the disputed parcels; that action is reversible and damages would be an adequate remedy, so the second limb failed.
Applying Stanley Kangethe Kinyanjui v Tony Ketter, the Court examined whether the impugned action was reversible and whether damages would compensate. The judge had only ordered the Land Registrar to fix the boundary; if the judge was wrong, that action is reversible and damages adequate. Balancing rival submissions, the applicant failed the second limb of the twin rule 5(2)(b) principles.
Legal principles established
#- To succeed under rule 5(2)(b), an applicant must satisfy the twin conjunctive principles that the appeal is arguable and that it would be rendered nugatory if stay is not granted.
- An arguable appeal is not one that must succeed; a single arguable ground suffices.
- The nugatory test asks whether what is sought to be stayed is reversible or, if not, whether damages would reasonably compensate the aggrieved party.
- An order directing a Land Registrar to fix a boundary is reversible and damages would be an adequate remedy, so an appeal against such an order is not rendered nugatory by its execution.
Court orders
#- 1.The Notice of Motion dated 19th January 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
- Narok ELCA No. E006 of 2023 (judgment of Lucy Gacheru, J., dated 17th December 2023)
- Jurisdiction invoked
- Section 3A(1) & (2) of the Appellate Jurisdiction Act and rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, 2022
Relief refused
#Injunction restraining the respondent and the Narok County Registrar and Surveyor from implementing the ELC judgment by surveying, fixing or interfering with the boundaries of parcel NAROK/CIS-MARA/OLOLULUNGA/144 pending the intended appeal
The appeal, though arguable, would not be rendered nugatory: the boundary-fixing ordered by the trial court is reversible and damages would be an adequate remedy; the applicant failed the second limb of the rule 5(2)(b) test
Costs
The application was 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.
To succeed in an application for stay of execution, an applicant must satisfy the following twin conjunctive principles under rule 5 (2) (b) of this Court's Rules: the appeal is arguable; and would be rendered nugatory if stay is not granted.
whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
In the end, it is our finding that nothing will be rendered nugatory, as whatever action is taken by the respondents is reversible if the appeal succeeds.
In view of the above, we come to the inescapable conclusion that the Notice of Motion dated 19th January 2026 lacks merit. It is hereby dismissed with costs to the respondent.
Issues in the judgment
#The judgment inconsistently dates the ELC judgment: the application record describes a notice of appeal dated 30th December 2023 while the judgment quotes the judge as delivering the ruling on 17th December 2025, and elsewhere refers to a Court of Appeal judgment dated 31st March 2023 remitting the matter.
Apparent typographical errors in the judgment, including '442.' where '41.' appears intended, and reference to 'land parcel No 44' rather than No. 144.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ole Kisua & 2 others v Kisanda Kilanda Enterprises (Civil Application E010 of 2026) [2026] KECA 1166 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 19th January 2026 arising from intended appeal against Narok ELCA No. E006 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1166/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.