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Court of AppealDismissedCivil Appeal E003 of 2026· [2026] KECA 2060 (KLR)

Matifari v Mung’au & 5 others

Court of Appeal
22 May 2026
1,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Kakamega (Nyamweya, Radido and Ngetich, JJA) on a Notice of Motion dated 11th April 2025 by Joseph Situma Matifari seeking stay of execution of eviction orders issued in Bungoma ELC Case No. 101 of 2015, pending an intended appeal from the Environment and Land Court judgment of Cherono J delivered on 7th March 2024. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, invoking the Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules. The Court applied the settled twin-test: the applicant must show the intended appeal is arguable and that, absent stay, its success would be rendered nugatory. On the first limb, the Court found the applicant had annexed no draft memorandum of appeal and articulated no specific grounds; his counsel's reference to fraud in submissions was unsupported by particulars. The respondents also exhibited a 2007 judgment of the same Court dismissing the applicant's claim to the same land, casting doubt on any viable arguable issue. Although the Court briefly addressed the second limb, it held that substantial loss from eviction is distinct from nugatory-ness and that damages could compensate any loss. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

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.

Reasoning

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.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

It would not; substantial loss from eviction is distinct from nugatory-ness, and damages could compensate any loss.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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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, "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.