Melitus Charles Nyongesa v Zakayo Waswa
The bottom line
#Kenya's Court of Appeal refused to stop an eviction, ruling that losing land possession temporarily can be reversed and compensated with money later.
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 under the Rule 5(2)(b) test
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Arguability of the intended appeal
The contention that the Court of Appeal's original judgment did not pronounce itself on vacant possession is an arguable point of law, satisfying the first limb.
The Court applied the Kang'ethe Kinyanjui principles without making definitive findings on the merits or on the correctness of the ELC's interpretation of Section 24 of the Land Registration Act, accepting only that the jurisdictional point raised a bona fide arguable issue of law.
Nugatory aspect of the stay application
The nugatory limb failed because land is a stable asset, eviction is reversible, and any loss is compensable in damages.
Relying on Reliance Bank v Norlake Investments and Mohamed Salim t/a Choice Butchery, the Court held that if the intended appeal succeeds the applicant can be restored to possession, and the successful party's right to enjoy the fruits of judgment must be balanced against the applicant's right of appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted.
- An arguable appeal need only raise a single bona fide point and must not be frivolous.
- The nugatory test turns on whether what is sought to be stayed is reversible, or whether damages would reasonably compensate the aggrieved party.
Court orders
#- 1.The application dated 4th June 2026 for stay of execution 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 Bungoma
- Bungoma ELC No. 43 of 2001
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELC ruling and consequential orders (eviction and vacant possession) pending the intended appeal
Arguability limb satisfied but the nugatory limb failed because eviction is reversible and loss is compensable in damages
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.
An applicant must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if a stay is not granted, as enunciated in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR.
In determining such an application, the Court must be careful not to make definitive findings of fact or law that would embarrass the ultimate hearing of the main appeal.
The execution of an eviction order is inherently a reversible process.
From the foregoing, the application dated 4th June 2026 does not meet the threshold for a grant of orders of stay of execution. The same is hereby dismissed with costs to the respondent.
Issues in the judgment
#Page numbering is inconsistent, running 'Page 1 of 4' through 'Page 8 of 4'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Melitus Charles Nyongesa v Zakayo Waswa", Case Analysis (2026). Civil Application No. E126 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2070/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.