Jane N. Kaunja & 2 others v Julius B. Marangu Mburugu & 3 others
The bottom line
#Kenya's Court of Appeal refused to pause an eviction order because the applicant showed neither an arguable appeal nor real risk of uncompensable loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
No arguable issue was demonstrated. The trial court had found the property lawfully registered to the 4th respondent with no basis to infer a customary trust, and the applicant admitted residing on a different parcel, so no bona fide point arose from the eviction order.
The Court examined the draft grounds - failure to recognise the customary trust, introduction of unpleaded issues, and ownership findings - but found the trial court's judgment detailed and its findings against the applicant. The applicant admitted residing on Abogeta/U-Kiungone/810, not the suit property, and showed no actual occupation, developments or exclusive possession, undermining the arguability claim without deciding the merits.
Whether the appeal would be rendered nugatory if stay was denied
The nugatory limb failed: there was no evidence of residence on the suit property or of developments likely to be demolished causing irreparable, uncompensable loss.
The Court applied its settled position that nugatoriness must be demonstrated by evidence and depends on each case. The record showed only cultivation of tea bushes on agricultural land registered to the 4th respondent, who had held title since 1994. Mere cultivation, without residence, structures or developments facing demolition, cannot establish loss incapable of compensation should eviction proceed before the appeal is heard.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two conditions: that the intended appeal is arguable (not frivolous) and that, unless the orders sought are granted, the appeal if successful would be rendered nugatory.
- An arguable appeal need not necessarily succeed; it is one that raises at least one bona fide point deserving of consideration by the Court.
- Whether an appeal would be rendered nugatory depends on demonstration by evidence and on the circumstances of each particular case.
Court orders
#- 1.The notice of motion dated 7th February 2025 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- Environment and Land Court
- ELC case No. 38 of 2019 (Meru)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane N. Kaunja & 2 others v Julius B. Marangu Mburugu & 3 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1359/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.