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Court of AppealDismissedCivil Application E014 of 2026· [2026] KECA 1697 (KLR)

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.

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
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

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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.