Matifari v Mung’au & 5 others
The bottom line
#The Court of Appeal refused to halt eviction because the applicant never showed his planned appeal had any real, arguable grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
It was not; the applicant annexed no draft memorandum of appeal and articulated no specific grounds, merely asserting the appeal had high chances of success.
The applicant deposed only that he intended to appeal against the entire judgment and believed it had high chances of success. No draft memorandum was annexed and no specific grounds were articulated. Counsel's allusion to fraud in submissions was unsupported by particulars in the application. A prior 2007 judgment of the same Court dismissing the applicant's claim to the same land further cast doubt on any viable arguable issue.
Whether the appeal would be rendered nugatory absent stay
It would not; substantial loss from eviction is distinct from nugatory-ness, and damages could compensate any loss.
Although the applicant claimed occupation for over 20 years and imminent eviction rendering his family destitute, the Court reiterated that substantial loss is a different test from nugatory-ness under Rule 5(2)(b). The respondents also pointed to the applicant's lack of legal interest per the 2007 judgment and prior sales of parts of the land. The Court found damages could compensate any loss, so the appeal would not be rendered worthless.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: that the intended appeal is arguable and that it would be rendered nugatory absent the order sought.
- Once the Court concludes an intended appeal is not arguable, it need not consider the nugatory limb.
- Substantial loss under Order 42 Rule 6 is distinct from the nugatory-ness test under Rule 5(2)(b).
- An arguable appeal need not necessarily succeed; it need only raise at least one bona fide point deserving consideration.
Court orders
#- 1.The Notice of Motion dated 11th April 2025 is dismissed with costs to the Respondents
- On appeal from
- Environment and Land Court at Bungoma
- Bungoma ELC Case No. 101 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matifari v Mung’au & 5 others", Case Analysis (2026). Civil Appeal E003 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2060/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.