Denooyer & another v Anciloto
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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
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.
Whether the appeal would be rendered nugatory without the injunction
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 19th February 2026 seeking an injunction pending appeal is dismissed
- 2.Costs of the application to the respondent
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.