Denooyer & another v Anciloto

disturbing the applicants’ quiet possession and occupation of the property known as LR NO. 8035/9 Laikipia County. iv. Costs. 2. The motion is supported by an adavit sworn by James Stanley Denooyer, the 1st applicant. 3. The grounds in support of the application are as follows: - 4. i. On 22nd October 2024 a consent was recorded in Nanyuki ELC NO. E011 OF 2022 marking the suit as settled with no order as to costs. ii. The applicants, on 15th January 2025, then led an application seeking to vary, set aside and/ or review said consent on grounds of erroneous legal advice and collusion by their former advocates. iii. The said application was dismissed on the basis that the grounds advanced did not meet the threshold for setting aside a consent order. iv. The applicants subsequently led another application on 4th June 2025 seeking to set aside the consent while raising for the rst time the issue that the 1st applicant did not execute the license agreement which prompted the ling of the consent and the same was only executed by the 2nd applicant under duress. v. The applicants stress the fact that the issue of the authenticity, of the 1st applicant’s signature was never raised in the application dated 15th January 2025; and that despite the fact that the second application was based on a new distinct legal and factual issue, the second application was dismissed on ground of res judicata. vi. As a result of relying on the impugned consent and license agreement, the respondent is interfering and curtailing the applicants’ possession and occupation of the suit land and that respondent’s said actions aect the applicants’ rights and render the appeal nugatory. vii. The applicants contend that the appeal raises serious arguable issues. In her adavit in response to the application, sworn on 6th March, 2026 by the respondent, Luisa Ancilotto opposed the application on the following grounds. i. The applicants are basically forum shopping as they had all the information they needed to include in the rst application which they chose not to. ii. The application is fatally defective, misconceived and ill-advised, without merit and an abuse of court process. iii. The rst applicant had never disowned his signature, only to do so after the rst application was dismissed, and as such, the second application was an afterthought. iv. The respondent avers that she has not tried to and/or threaten to evict the applicants. 5. Both parties led supplementary adavits and written submissions. Those of the applicant were dated 30th March 2026 and highlighted by Ms Amutavi who held brief for Mr. Okach for the applicants. The respondent’s submissions are dated 13th April 2026, Mr. Omar Amin who appeared for the respondent also highlighted the submissions on behalf of his client. 6. We have carefully considered the motion, the rival adavits and submissions on record as well as the arguments presented by counsel for both parties in their oral highlights before us. For an applicant https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1697/eng@2026-09-25 2

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to succeed in such an application s/he must satisfy two requirements: rstly, demonstrate that the intended appeal is arguable and, secondly, that the same will be rendered nugatory if the relief sought is not granted. 7. The Supreme Court in Civil Application No. 12/15 - Deynes Muriithi & 4 Other vs LSK & Another [2016] eKLR stated that rule 5(2)(b) applications arise at an interlocutory stage and the orders issued thereunder are for the purpose of protecting the subject matter of an Appeal, the Court of Appeal having yet to nally determine the Appeal. 8. In the case of Teachers Service Commission vs Kenya National Union of Teachers & 3 Others, Sup. Court App 16/2015 [205] eKLR. The Court stated as follows: “ [23] It is clear to us that Rule 5(2)(b) is essentially a tool for preservation. It safeguards the substratum of the Appeal in consonance with principles developed over the years.” [ 27] Rule 5(2)(b) of the Court of Appeal Rules is derived from Article 164(3) of the Constitution. It illuminated the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of the Appeal/intended Appeal.” The parameters to be met by a successful applicant for interlocutory relief under rule 5(2)(b) are well settled. In the case of Alferd Mincha Ndubi vs Standard Limited [2020] eKLR this Court quoted with approval the case of Ishmael Kangunyi Thande vs Housing Finance Company of Kenya Limited, Civ. Appl No. Nai 157/2006 “to succeed in an application in 5(2)(b) the applicant has to establish that: “ i. The Appeal is arguable ii. The Appeal is likely to be rendered nugatory if the injunction is not granted and Appeal succeeds” These principles were restated by this Court in Multi Media University & Another vs Prof. Gitile N. Naituli [2014] eKLR ‘…from the long line of decided cases on Rule 5(2)(b) the jurisprudence is underlined in the case of Stanley Kangethe Kinyanjui vs Tony Ketter & Others [2013] eKLR as follows “ i. In dealing with rule 5(2)(b) the court exercises original and discretionary jurisdiction, ii. The discretion is wide and unfettered if it is just to do so, iii. Court becomes seized of the matter only after Notice of Appeal is led under Rule 75, iv. In considering whether the Appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances, v. An applicant must satisfy the twin principles, vi. Whether Appeal is arguable, it is sucient if a single bona de arguable ground of Appeal is raised, vii. Arguable Appeal is not one that will necessarily succeed but one which ought to be argued fully before court and is not frivolous, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1697/eng@2026-09-25 3

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viii. The court must not make a denitive/nal nding as to facts of law in an application under Rule 5(2)(b), ix. Whether or not an Appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the aggrieved party. 9. In the case of Wasike vs Swala [1984] 591 KLR this Court held that, an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court. 10. In the case of Attorney General vs Okiya Omtata & Anor [2019] eKLR, this Court held: “the principles for our consideration in exercise of our unfettered discretion under rule 5(2)(b) to grant an order of stay are well settled. Firstly, the applicant must satisfy that it has an arguable Appeal. However, this is not to say that the appeal will necessarily succeed but suce it that the appeal is not idle or frivolous.” 11. This court held in Co-operative Bank of Kenya Ltd vs Banking Insurance and Finance Union Kenya [2014] eKLR as follows:- ‘it is sucient that the issues raised are arguable.’ In Kisumu Civil Appeal 74/2016, George O. Gache & Anor vs Judith Akinyi Bonyo & Others this Court stated thus:- ‘at this stage the court is not expected to inquire into the merits of the case and whether or not the appeal will succeed. It is sucient that the Applicant has met the threshold as existence of a single bona de issue is sucient.’ 12. Having considered the grounds set out in the motion and the memorandum of appeal, we are of the view that the arguability test has been surmounted. At least, the one vehemently argued topic - whether the Court below erred in nding that the second application dated 4th June 2025 was res judicata, is an arguable point in the main appeal. Having identied at least one arguable point, we need not say more on the rst limb of what is to be satised by the applicant under rule 5(2)(b) aforesaid. Suce to add that an arguable point is not necessarily one that must succeed, but merely one that is deserving of consideration by the Court. 13. As to whether the appeal will be rendered nugatory if the relief sought is not granted at this stage, this court has held in the case of Reliance Bank Limited vs Norlake Investment Limited [2002]1 EA 227 that the factors which render an Appeal nugatory are to be considered within the circumstances of each case and in so doing, the court is bound to consider the conicting claims of both sides. (see also Oraro & Rachier Advocates vs Co-operative Bank of Kenya [1999] LLR 1118 14. In the case of African Safari Club Limited vs Safe Rentals Limited, Nai Civ App 53/2010 this court held: “ …with the above scenario of almost equal hardship by the parties, it is incumbent upon the court to pursue the overriding objective to act fairly and justly…to put the hardships of both parties on scale… we think that the balancing act is in keeping with one of the principal aims of the oxygen principle of treating both parties with equality or placing them on equal footing in so far as is practicable.” In this, the Court is to decide which party’s hardship is greater. 15. The case before the ELC Court was marked as settled on the basis of a consent order which the applicants subsequently attempted, unsuccessfully, to disown. That quest to resile or otherwise dissociate themselves from the said consent is clearly still alive and central to the instant application as well as in the main appeal. So far as can be gleaned from the material on record before us, the outcome of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1697/eng@2026-09-25 4

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the impugned consent settlement did not yield a positive disposition that can readily invite recourse to injunctive or stay orders in terms of the jurisdiction under rule 5(2)(b) aforesaid. What we are being told now is that there is a strained relationship between the parties. Examples of that are some restrictions imposed on the applicants’ user and occupation of part of the suit property to the extent that they could not freely host their friends to a Christmas party and can no longer enjoy walking their dogs freely as they would like to. Without going into the merits of the rival arguments, we note that both the applicants and the respondent conrm that there has been no eviction nor any threat of eviction as at the time of the hearing of this application on 8th April 2026, a period of over a year and a half from 22nd October, 2024 - the date when the consent was recorded. Since no execution or threat thereof has been eected in this period, the imminence of the risk has not been demonstrated. Of signicance is the respondent’s averment that she has not evicted, nor threatened to evict the applicant. 16. From the foregoing, it is this court’s opinion that the appeal would not be rendered nugatory if the orders sought are not granted. 17. We nd, therefore, that the applicants have not satised the second limb of the requirements under rule 5(2)(b) of the Rules of this Court. Accordingly, the notice of motion dated 19th February 2025 is hereby dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026 MUMBI NGUGI ............................. JUDGE OF APPEAL L. ACHODE ………………..….. JUDGE OF APPEAL PAUL LILAN …………….…..….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1697/eng@2026-09-25 5

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