Esther Muthoni Gakuru & 4 Others v Mary Wanjiku Muhindi
The bottom line
#The Court of Appeal in Nyeri refused to stop a family's eviction from land their late father sold, because they proved neither an arguable appeal nor irreparable harm.
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 (not frivolous)
- 2.Whether, if the orders sought are not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
No arguable grounds were demonstrated; prima facie the grounds of appeal lack merit.
The Court examined the judgment sought to be challenged and the material before the trial court. The applicants' father, the registered owner, sold the property and moved the family away; the wife and children returned only upon his death claiming fraud and customary trust. The Court declined to go into the merits but found no prima facie arguable grounds.
Whether the appeal would be rendered nugatory if the orders are not granted
The nugatory limb failed; eviction would not cause irreparable harm since the applicants previously vacated and any loss is compensable.
The Court applied the test that what is sought to be stayed must be reversible or damages must not reasonably compensate. The respondent's uncontroverted evidence showed the applicants had previously vacated and moved elsewhere, so eviction does not translate into irreparable harm, and any loss may be compensated or reversed on a successful appeal.
Whether the applicants' conduct disentitles them to equitable relief
The clean-hands consideration weighed against the applicants, who were in contravention of prior court orders.
The Court invoked the equitable nature of injunctions, citing Blue Waters Hotel, and noted the respondent's contention that the applicants were already in contravention of orders in Karatina ELC No. 10 of 2018 by failing to vacate the suit property of their own volition.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory unless the orders sought are granted.
- A single arguable ground suffices, but the ground must not be frivolous.
- The nugatory limb is not established by mere allegations; the applicant must place material before the Court demonstrating actual prejudice.
- An injunction being an equitable remedy, a party seeking it must come with clean hands.
Court orders
#- 1.The application dated 15th September 2025 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nyeri
- ELC No. E042 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Injunction and/or stay of proceedings against the respondent's interference with the suit properties pending the intended appeal
Applicants failed to satisfy both limbs of the rule 5(2)(b) test - no arguable appeal and no nugatory prejudice demonstrated
Conservatory orders pending determination of the intended appeal
Same failure of the twin principles; applicants previously vacated the property and any loss is compensable
Costs
The application is 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.
In order to succeed, in an application under rule 5(2)(b) of the Rules, an applicant must demonstrate two limbs: first, that the intended appeal is arguable (that is, it is not frivolous); and second, that unless the orders sought are granted, the appeal will be rendered nugatory.
the nugatory limb is not established by mere allegations. An applicant must place material before the Court to demonstrate actual prejudice likely to occur.
an injunction is an equitable remedy, granted to those who seek it with clean hands and prepared to do equity.
In the circumstances, the application fails. It is dismissed with costs to the respondent.
Issues in the judgment
#Delivery date stated as 25th September 2026, inconsistent with the 2025 application and filing dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Muthoni Gakuru & 4 Others v Mary Wanjiku Muhindi", Case Analysis (2026). Civil Application No. E134 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1862/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.