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)
The bottom line
#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
#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, unless stay of execution is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
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.
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record showed counsel knew of the proceedings and appeared at the hearing, informing the court that the applicant had withdrawn instructions just before the hearing.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.
Whether stay of execution could issue over a decision that was a dismissal
No stay can issue because the appeal arises from a ruling that dismissed the applicant's application; there is no active decree to enforce.
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.
Whether the appeal would be rendered nugatory absent a stay
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 17th November 2021 seeking stay of execution pending appeal 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, 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
#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
Costs
The Notice of Motion is 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.
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.
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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.