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Court of AppealPartially AllowedApplication dated 7th February, 2025 (arising from ELC Nyeri Case No. 598 of 2014)

Kamau & another v Teri Crane & another (Civil Appeal (Application) E018 of 2025) [2026] KECA 1312 (KLR)

Court of Appeal of Kenya
10 July 2026
1,221 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal froze land transfers and mesne profits execution pending appeal, but refused to let a party who left voluntarily move back in.

What this practically means

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Executive summary

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By a Notice of Motion dated 7th February, 2025 under rule 5(2)(b) of the Court of Appeal Rules, 2022, two applicants sought stay of execution of a judgment delivered on 3rd October, 2024 in ELC Nyeri Case No. 598 of 2014, in which the trial court declared that the 1st applicant held four Nyeri Municipality plots in trust for the respondents, ordered transfer of three plots to the 2nd respondent, delivery of vacant possession, and payment of mesne profits of Kshs. 15,000 per month from September 2010. The applicants contended the trial judge erred in failing to give effect to an express trust created by deed and in awarding mesne profits contrary to the parties' agreement, and that transfer of titles, disposal to third parties, execution for approximately Kshs. 6,250,000 and possible contempt proceedings would render the appeal nugatory. The respondents and the 2nd applicant did not appear despite service. Applying the settled twin principles under rule 5(2)(b), as articulated in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others, the Court found the appeal arguable and held that alienation of the titles would destroy the substratum of the suit, while execution for mesne profits running into millions warranted suspension; on a balance of convenience the respondent could be compensated if the appeal fails. The Court granted a limited stay restraining transfer or disposal of the suit properties and suspending execution for mesne profits pending the appeal, but refused a mandatory order restoring the 1st applicant to the premises he had vacated voluntarily. Costs were ordered to abide the outcome of the appeal. The decision below was not disturbed; the ruling concerns interim preservation only.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless stay is granted, the appeal would be rendered nugatory
  3. 3.What limited stay orders, if any, should issue pending the hearing and determination of the appeal

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The limb was met: the grounds challenging the trust finding and mesne profits were worthy of consideration

Reasoning

The court perused the affidavit and memorandum of appeal raising grounds that the trial court disregarded the parties' intention and representations regarding purchase contribution, and erred in awarding mesne profits over contractually agreed occupation. It held arguable grounds need not succeed on appeal; they need only be worthy of consideration by the Court.

p. 3
02

Whether the appeal would be rendered nugatory without stay

Holding

Yes: transfer of titles to third parties would destroy the substratum, and execution for mesne profits running into millions justified suspension

Reasoning

The court accepted that if titles were transferred and alienated to third parties the properties would be beyond the applicant's reach, destroying the substratum of the suit. It further found that execution for mesne profits over a protracted period running into millions of shillings should be halted, and on a balance of convenience the respondent could be compensated if the appeal fails.

p. 3
03

Scope of the stay to be granted

Holding

Stay limited to restraining transfer/disposal and suspending mesne profits execution; no mandatory order of reinstatement

Reasoning

In exercising its discretion the court granted a limited stay protecting the substratum and halting monetary execution, but declined a mandatory order restoring occupation because the 1st applicant had vacated voluntarily, meaning any reinstatement would alter the status quo he himself created.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay, and both limbs must be satisfied
  • Grounds need only be worthy of consideration, not certain to succeed, to establish an arguable appeal

Court orders

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  1. 1.Limited stay restraining the transfer or disposal of the suit properties pending the hearing and determination of the appeal
  2. 2.Suspension of execution for mesne profits pending the hearing and determination of the appeal
  3. 3.The application dated 7th February, 2025 allowed in terms of order (a)
  4. 4.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.

majority
majority
majority
On appeal from
Environment and Land Court, Nyeri
ELC Nyeri Case No. 598 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Mandatory order allowing the 1st applicant to return to the suit premises

He vacated the premises voluntarily; the court would not order reinstatement

p. 3

Costs

The costs of the application shall abide the outcome of the appeal.

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.

It is required that the applicant satisfies this Court on the twin principles; first, that he has an arguable appeal; secondly, that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory.
p. 2Twin principles under rule 5(2)(b)
We are aware that the arguable grounds raised need not succeed on appeal, all the applicant needs to demonstrate is that they are worthy of consideration by this Court.
p. 3Threshold for arguability
The result is that the application dated 7th February, 2025 is allowed in terms of order (a). The costs of the application shall abide the outcome of the appeal.
p. 3Final orders and costs
However, this Court declines to grant a mandatory order which will have the efiect of allowing the 1st applicant to return to the suit premises which he vacated voluntarily.
p. 3Refusal of mandatory reinstatement order

Issues in the judgment

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minor

The judgment states the memorandum of appeal is dated 27th January, 2024, which predates the judgment appealed against (3rd October, 2024); the date appears to be an error

minor

The judgment does not set out the full order (a) of the motion that the application is allowed in terms of, nor the names of the parties in the cause title

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamau & another v Teri Crane & another (Civil Appeal (Application) E018 of 2025) [2026] KECA 1312 (KLR)", Case Analysis (2026). Application dated 7th February, 2025 (arising from ELC Nyeri Case No. 598 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1312/eng@2026-07-10

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