Lilian Akeyo Onyango alias Lilian Omoro v Peter Ojwang & 3 others
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs 3 million unlawful eviction award, ruling the applicant couldn't hide behind succession law while collecting rent.
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 absent stay
- 3.Whether the application amounts to an abuse of the court process
Key legal issues
#Arguability of the intended appeal on locus standi
The locus standi ground was not arguable because the applicant was sued personally as the person who carried out the eviction, not as administratrix of the estate.
The court held that a tort claim for unlawful eviction attaches to the wrongdoer personally irrespective of ownership of the property. The applicant personally carried out the forcible eviction and collected rent from the premises; she cannot rely on Section 82 of the Law of Succession Act to escape accountability while enjoying benefits of the estate. The arguability threshold was therefore not met.
Abuse of court process
Moving to the Court of Appeal for similar stay orders while conditional trial-court stay orders remained in place and uncomplied with was an abuse of process.
The applicant had obtained a conditional stay from the trial court requiring deposit of the decretal sum within 60 days. Instead of complying, and while those orders were still in force, she filed a similar application in this Court. The court held such duplicative, non-compliant litigation could not be countenanced and independently justified dismissal.
Nugatory aspect
Not considered, because the twin principles are conjunctive and the applicant had already failed on arguability.
The court reiterated that the twin principles under Rule 5(2)(b) are conjunctive: an applicant must satisfy both. Having failed on the arguability limb, the court expressly declined to determine whether the appeal would be rendered nugatory absent stay, rendering the nugatory analysis unnecessary to the disposition.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles of arguability and nugatory aspect; failure on one disposes of the application.
- A claim in tort for unlawful eviction attaches to the individual who committed the wrongful act, regardless of property ownership or administration status.
- Filing a similar application in the appellate court while trial-court stay orders are in place and uncomplied with is an abuse of court process.
Court orders
#- 1.The Notice of Motion dated 28th February 2025 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 53 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the judgment and decree of the ELC dated 25th January 2024
Applicant failed to satisfy the arguability limb of the Rule 5(2)(b) twin principles; the application was also an abuse of court process
Costs
The application is dismissed with costs to the respondents.
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.
For the applicant to succeed under Rule 5(2)(b), the applicant must satisfy the two twin principles on arguability and the nugatory aspect.
A claim in tort for unlawful eviction attaches to the individual who committed the wrongful act, regardless of property ownership status.
The twin principles on arguability and nugatory aspect are conjunctive and, therefore, failure to prove one renders the application a suitable candidate for dismissal.
Accordingly, the Notice of Motion dated 28th February 2025 is without merit and the same is hereby dismissed with costs to the respondents.
Issues in the judgment
#Property number inconsistency in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lilian Akeyo Onyango alias Lilian Omoro v Peter Ojwang & 3 others", Case Analysis (2026). Civil Application E128 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1732/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.