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
#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 the appeal will be rendered nugatory if the injunction pending appeal is not granted
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
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.
Accordingly, the notice of motion dated 19th February 2025 is hereby dismissed with costs to the respondent. It is so ordered.
Since no execution or threat thereof has been effected in this period, the imminence of the risk has not been demonstrated.
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.
an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court.
Issues in the judgment
#Date discrepancy in the final order: the motion is dated 19th February 2026 but the order refers to 19th February 2025
Citation for Teachers Service Commission printed as '[205] eKLR', apparently a typographical error for [2015]
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.