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Court of AppealDismissedCivil Application E014 of 2026

Denooyer & another v Anciloto

Court of Appeal
25 September 2026
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to block a possible eviction because the applicants could not show any actual or imminent threat of eviction.

What this practically means

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Executive summary

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The applicants, James Stanley and Lori Cox Denooyer, moved the Court of Appeal at Nyeri under rule 5(2)(b) of the Court of Appeal Rules, 2022 for an injunction restraining Luisa Ancilotto from evicting or disturbing their occupation of LR No. 8035/9, Laikipia County, pending an intended appeal against a ruling of the High Court at Nanyuki (Mbugua J) of 10th December 2025. The background was a consent recorded on 22nd October 2024 settling ELC No. E011 of 2022; the applicants' two attempts to set it aside - first on grounds of erroneous advice and collusion, then on the new ground that the 1st applicant's signature was not on the licence agreement - were dismissed, the second on res judicata grounds. The court restated the settled twin test: the applicant must show an arguable appeal and that it will be rendered nugatory without relief. The arguability limb was satisfied on the res judicata point alone. However, the nugatory limb failed: both parties confirmed no eviction or threat of eviction had occurred in the year and a half since the consent, so no imminent risk was demonstrated, and the grievances cited amounted to strained relations rather than dispossession. The application was dismissed with costs to the respondent. The intended appeal remains pending; the decision below was not disturbed at this interlocutory stage.

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 the appeal will be rendered nugatory if the injunction pending appeal is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The arguability test was met: whether the ELC erred in finding the second application (dated 4th June 2025) res judicata is a bona fide arguable point

Reasoning

The court examined the grounds in the motion and memorandum of appeal and found at least one arguable point - whether the High Court correctly barred the second setting-aside application as res judicata. An arguable appeal need not succeed; it suffices that it is not idle or frivolous and deserves full consideration.

p. 4
02

Whether the appeal would be rendered nugatory without the injunction

Holding

The nugatory limb failed: no eviction or threat of eviction had occurred in over a year and a half since the consent, so no imminent risk was demonstrated

Reasoning

Both parties confirmed no eviction or threat existed as at the hearing. The consent settlement produced no positive disposition inviting injunctive relief; the grievances cited (restrictions on hosting friends or walking dogs) showed strained relations, not dispossession. The respondent expressly averred she had not evicted nor threatened eviction.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if relief is not granted; failure on either limb is fatal
  • A single bona fide arguable ground suffices for the arguability limb, but the applicant must still satisfy the nugatory limb
  • Whether an appeal will be rendered nugatory depends on the circumstances of each case, weighing the conflicting claims and hardships of both sides

Court orders

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  1. 1.The notice of motion dated 19th February 2026 seeking an injunction pending appeal is dismissed
  2. 2.Costs of the application 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
High Court at Nanyuki
ELC No. E011 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022, derived from Article 164(3) of the Constitution

Relief refused

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Injunction restraining the respondent from evicting, harassing or disturbing the applicants' possession of LR NO. 8035/9 Laikipia County pending the intended appeal

The applicants failed to demonstrate that the appeal would be rendered nugatory; no eviction or threat of eviction had occurred, so imminence of risk was not shown

p. 5

Costs

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.

Accordingly, the notice of motion dated 19th February 2025 is hereby dismissed with costs to the respondent. It is so ordered.
p. 5Final orders - dismissal of the rule 5(2)(b) application
Since no execution or threat thereof has been effected in this period, the imminence of the risk has not been demonstrated.
p. 5Nugatory limb - absence of imminent risk of eviction
For an applicant to succeed in such an application s/he must satisfy two requirements: firstly, demonstrate that the intended appeal is arguable and, secondly, that the same will be rendered nugatory if the relief sought is not granted.
Twin test under rule 5(2)(b)
an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court.
p. 4Definition of an arguable appeal

Issues in the judgment

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minor

Date discrepancy in the final order: the motion is dated 19th February 2026 but the order refers to 19th February 2025

minor

Citation for Teachers Service Commission printed as '[205] eKLR', apparently a typographical error for [2015]

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, "Denooyer & another v Anciloto", Case Analysis (2026). Civil Application E014 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1697/eng@2026-09-25

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