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Court of AppealDismissedNairobi Civil Application No. E470 of 2021 (in Nairobi Civil Appeal No. E470 of 2021)

Good News Church of Africa v Board of Trustees Full Gospel Churches of Kenya & 2 others (Civil Application E399 of 2021) [2026] KECA 1598 (KLR)

Court of Appeal
31 July 2026
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause enforcement of a Machakos land judgment, ruling the church's appeal had no real chance of success.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal at Nairobi dismissing an application under rule 5(2)(b) of the Court's Rules and sections 3A and 3B of the Appellate Jurisdiction Act, in which the applicant sought a stay of execution and enforcement of the judgment of 29th January 2021 of the Environment and Land Court at Machakos (Angote J), which declared the respondent the lawful owner of Plot No. Machakos Town/Block 1/297 and entitled to registration. The application was directed at the ruling of 1st October 2021 dismissing the applicant's earlier application for stay and setting aside, from which the applicant lodged Nairobi Civil Appeal No. E470 of 2021. The Court restated the settled twin, conjunctive requirements under rule 5(2)(b): an arguable appeal and nugatory-ness. On the first limb, the Court found the applicant had been accorded considerable opportunity to prosecute its case, that its counsel appeared at the hearing and disclosed withdrawn instructions, and that the issues now raised concerned documents never tendered before the trial court; the threshold, though low, was not met. On the second limb, the Court applied Western College v E.P. Oranga, holding that no stay can issue where the decision below was a pure dismissal, since there is no active decree to enforce, and applied Reliance Bank v Norlake Investments to find no demonstrated nugatory-ness: ownership had been conclusively determined, no legally recognizable proprietary interest was shown, and the Court could fashion appropriate relief if the appeal succeeded. The Notice of Motion was dismissed with costs to the respondent. The decision binds subordinate courts and the High Court on these principles.

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 of execution is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not genuinely arguable; the issues raised concerned documents and matters never tendered before or scrutinized by the trial court, and the applicant's non-participation was not attributable to its advocate.

Reasoning

The record showed counsel knew of the proceedings and appeared at the hearing, informing the court that the applicant had withdrawn instructions just before the hearing. The applicant was accorded considerable opportunity to prosecute its case and could not blame its advocate. Inviting the Court at an interlocutory stage to revisit factual questions never canvassed before the superior court was an invitation the Court declined.

p. 3
02

Whether stay of execution could issue over a decision that was a dismissal

Holding

No stay can issue because the appeal arises from a ruling that dismissed the applicant's application; there is no active decree to enforce.

Reasoning

Relying on Western College of Arts and Applied Sciences v E.P. Oranga, the Court held that where the lower court's decision was purely a dismissal, there is no decree capable of being stayed. The applicant was in effect seeking to challenge the 29th January 2021 judgment through an appeal directed at the ruling of 1st October 2021 dismissing its own application.

p. 3
03

Whether the appeal would be rendered nugatory absent a stay

Holding

No nugatory-ness was demonstrated: ownership had been conclusively determined, the applicant showed no legally recognizable proprietary interest, and the Court could fashion appropriate relief should the appeal succeed.

Reasoning

Applying Reliance Bank Ltd v Norlake Investments Ltd, the inquiry turns on whether what is sought to be stayed is reversible and whether damages or other relief would compensate. Eviction and loss of possession may occasion inconvenience, but the mere assertion that the appeal will be rendered nugatory is insufficient. The respondent, having obtained judgment, is entitled to enjoy the fruits thereof absent sufficient grounds for intervention.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two conjunctive requirements: an arguable appeal and that the appeal would be rendered nugatory absent the orders sought; both must be satisfied.
  • Appellate courts cannot grant a stay of execution where the decision sought to be stayed was a pure dismissal, as there is no active decree to enforce.
  • Although the threshold for an arguable appeal is low, an applicant must demonstrate a bona fide issue deserving consideration; an applicant who failed to prosecute its case cannot blame counsel for non-participation.

Court orders

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  1. 1.The Notice of Motion dated 17th November 2021 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

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, Machakos
Machakos ELC Case No. 74 of 2005 as consolidated with Machakos High Court Civil Case No. 222 of 2008 (ruling of 1st October 2021)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution and/or enforcement of the judgment of 29th January 2021 in Machakos ELC Case No. 74 of 2005 pending the hearing and determination of Nairobi Civil Appeal No. E470 of 2021

The applicant failed both limbs of rule 5(2)(b): the intended appeal is not genuinely arguable, and the appeal is against a ruling that dismissed its application, a scenario in which no stay can issue since there is no active decree to enforce; further, the applicant demonstrated no legally recognizable proprietary interest and made mere assertions of nugatory-ness

p. 4

Costs

The Notice of Motion is dismissed with costs to the respondent.

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.

An applicant must satisfy two requirements. First, that the intended appeal is arguable; and second, that unless the orders sought are granted, the appeal, if successful, would be rendered nugatory. The two limbs are conjunctive and both must be satisfied.
p. 3Twin requirements under rule 5(2)(b)
established that appellate courts cannot grant a stay of execution, if the lower court’s decision was purely a dismissal as there would be no active decree to enforce.
p. 4No stay over a dismissal
While the threshold for an arguable appeal is admittedly low, an applicant must nevertheless, demonstrate the existence of a bona fide issue deserving consideration on appeal.
p. 3Threshold for arguability
In the result, we are not satisfied that the applicant has met the twin requirements under rule 5(2)(b) to warrant granting of the orders sought. Accordingly, the Notice of Motion is hereby dismissed with costs to the respondent. It is so ordered.
p. 4Final orders

Issues in the judgment

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minor

Internal chronology inconsistency: the judgment recites a plenary hearing on 24th March 2026 and delivery on 31st July 2026, in relation to an application supported by an affidavit of 17th November 2021 and replies of January 2022, with a nearly four-year unexplained gap and hearing dates that post-date the referenced submissions by years.

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, "Good News Church of Africa v Board of Trustees Full Gospel Churches of Kenya & 2 others (Civil Application E399 of 2021) [2026] KECA 1598 (KLR)", Case Analysis (2026). Nairobi Civil Application No. E470 of 2021 (in Nairobi Civil Appeal No. E470 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1598/eng@2026-07-31

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