Naipe Ene Nkere & 2 Others v Tipina Enole Nkere

Chief Magistrate’s Court at Narok ELC Civil Case No Page 2 of 21

page 2 of 38

E025 of 2022 Tipina Enole Nkere vs. Lewis Sarupa Nkere and Partoti Ole Nkere pending the lodging, hearing and determination of the intended appeal against the ruling delivered on 19th March, 2026 in Narok Environment and Land Court Civil Appeal No. E011 of 2025, Naipe Ene Nkere & 3 Others v Tipina Enole Nkere. b) Restrain the respondent by herself or her servants or agents from evicting the 1 st applicant from her house's share of Cis Mara/Noletukat/60 (the suit land) pending the lodging, hearing and determination of the intended appeal against the ruling delivered on 19th March 2026 in Narok Environment Land Court Civil Appeal E011 of 2025, Naipe Ene Nkere & 3 Others v Tipina Enole Nkere. c) The Costs do abide the outcome of the intended appeal. Page 3 of 21

page 3 of 38

2. The application is premised on a raft of grounds which we have condensed as follows: a) The 1st applicant is the senior co-widow of the respondent and the co-proprietor of the suit property and she has a right to appeal against both the ruling delivered on 19th March, 2026 in Narok Environment and Land Court Civil Appeal E011 of 2025 Naipe Ene Nkere & 3 Others v Tipina Enole Nkere and also the judgment delivered against her by necessary implication on 18th June, 2025 in Chief Magistrate's Court at Narok ELC Civil Case No E025 of 2022 Tipina Enole NkerE v Lewis Sarupa Nkere and Partoti Ole Nkere to which she was not made a party by either the respondent or the Court itself despite the fact that the Court record showed that she was in occupation of the suit property and there was a title deed in both her name and that of the respondent; b) The principal object of the respondent in both Page 4 of 21

page 4 of 38

conceptualization and prosecution before the Chief Magistrate Court in the said Chief Page 5 of 21

page 5 of 38

Magistrate's Court at Narok Elc Civil Case No. E025 of 2022 Tipina Enole Nkere v Lewis Sarupa Nkere and Partoti Ole Nkere was to have her evicted from her home on the suit property through the back door and without being heard and that goal of the respondent has been achieved through the striking out of her appeal without any hearing; c) The 1st applicant who is 87 years old and therefore in her sunset years is anxious about the prospect of losing a home and her death coming earlier than it would have done if she had been given a fair hearing; d) The 1st applicant is a peasant farmer who is assisted by the 2nd and 3rd applicants to grow crops on her half of the suit land said and she is entitled to heard before her land is taken away from her; e) Together with her two sons, they filed an appeal against the judgment rendered by the Magistrates Court before the ELC and an Page 6 of 21

page 6 of 38

application for Page 7 of 21

page 7 of 38

preservation of the land but Gacheru, J. in the impugned decision struck out their appeal on the ground that the applicant and her sons who were defendants in the lower Court needed the permission of the Court to file an appeal to which their mother would be a party under section 79 (G) of the Civil Procedure Act. Further, the 2nd and 3rd applicants have a statutory right of appeal and they exercised it within 10 days of delivery of the Judgement. f) At the time the respondent filed her suit at the Chief Magistrate’s Court, the 2 nd and 3rd applicants, who are her step-sons were not living in the suit land, consequently, the target of eviction was the applicant, which has been attained through unfair proceedings before both the Chief Magistrate Court and the ELC. In addition to the documents establishing her occupation, there is a title deed in both her name and that of the Page 8 of 21

page 8 of 38

respondent and this fact escaped the attention of both Courts below, which should Page 9 of 21

page 9 of 38

have ordered under Order 1 Rule 10 of the Civil Procedure Rules to be enjoined because on the face of it. g) This Hon. Court under both Rule 5 (2) (b) and in exercise of its inherent jurisdiction, has power to preserve the subject matter of the intended appeal; h) The 1st applicant is in her own right, by virtue of a title deed to the suit property, entitled along with the children of her 1st house, to the continued possession of a half of the suit property they have occupied since 2012, the respondent enjoys the same right; i) Under Rule 5 (2) (b) of this Honourable Court's Rules, this Court has jurisdiction to preserve the subject matter of the intended appeal through either injunctions or a stay of execution. j) The intended appeal raises serious principles of law and constitutional questions, including Page 10 of 21

page 10 of 38

whether the superior court has jurisdiction to Page 11 of 21

page 11 of 38

depart from this Court's decisions such as S.N. Kantaria versus M.C. Kantaria and Others. Court of Appeal at Nairobi. Civil Appeal Number 277 of 2005 and Court of Appeal. Civil Appeal Number 85 of 1982: James Ndung'u Wambu versus Republic and Supreme Court decision in Petition No 16 of 2020 Kenya Properties Limited. k) Whether a co-widow or co-wife can evict the other from the family land on which the other is residing; l) Whether the Superior Court has the power to suspend the operation of a statute in this case, Section 79 (g) of the Civil Procedure Act; m) Whether the Superior Court wholly misunderstood the proceedings before it; n) The applicants are exercising through this application their right to property and the right of access to justice under Article 40 and Page 12 of 21

page 12 of 38

48 of the Constitution; Page 13 of 21

page 13 of 38

o) Unless the stay is granted, the Applicants' right of appeal will be rendered nugatory in that; p) It is in the interest of justice for this Court to grant the orders sought so as to preserve the subject matter of the appeal. 3. In response to the application, the respondent filed a replying affidavit dated 26th June 2026. The salient averments are: (a) the applicant has not met the threshold for stay, including providing security for the decree; (b) the applicant has not demonstrated that execution will cause irreparable harm; (c) no stay can be granted without proof of potential substantial loss and security; (d) the applicant’s appeal is only “intended” and not yet lodged, hence, the stay sought is premature; (e) the application is an attempt to delay the enforcement of the decree; (f) the respondent claimed she is the owner of the property and disputed the 1st applicant’s ownership claim. The respondent urged this Court to dismiss the application with costs. 4. In support of the application, learned Counsel Mr. Kamau Kuria, Senior Counsel appearing Page 14 of 21 for the applicant

page 14 of 38

highlighted Page 15 of 21

page 15 of 38

his written submissions dated 3 rd July 2026. Citing Halai & Another vs. Thorntorn & Turpin [1963] Ltd, he submitted that this Court’s jurisdiction to grant a stay is triggered by filing a notice of appeal, a requirement the applicant has satisfied. Citing Stanley Kangethe Kinyanjui vs. Tony Keter and 5 Others [2013] eKLR, he argued that an applicant in a 5 (2) (b) application is required to demonstrate the existence of an arguable appeal and that absent of stay, the appeal will be rendered nugatory. 5. Mr. Kuria SC cited Dennis Mogambi Mangare vs. AG & 3 Others [2012] eKLR to argue that an arguable appeal is not one which will succeed, but one deserving this Court’s consideration and that the aim of the stay is to preserve the subject matter of the appeal. It was his submission that the applicant’s appeal is arguable and that absent of stay, it will be rendered nugatory. Further, he cited Equity Bank Limited vs. West MBO Limited [2013] eKLR to urge that while dealing with a 5 (2) (b) application, this Court exercises discretion to ensure a just and effective determination of appeals. He also cited Teachers Service Page 16 of 21

page 16 of 38

Commission vs. Kenya National Union of Teachers Supreme Court Application No. 16 of Page 17 of 21

page 17 of 38

2015 to urge that this Court’s jurisdiction under Rule 5 (2) (b) is protective. Counsel urged this Court allow the application. 6. Learned counsel for the respondent Mr. Onduso relied on his written submissions dated 26 th June 2026. Notably, a reading of Mr. Onduso’s replying affidavit and his submissions, shows that his opposition to the application is anchored on Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010, which is inapplicable to proceedings before this Court. This Court’s proceedings are governed by the Court of Appeal Rules, 2022. Specifically, the application before us is governed by Rule 5 (2) (b) of the Court of Appeal Rules, 2022. Across multiple common law jurisdictions, Superior Courts have repeatedly issued stern warnings regarding the duty of legal practitioners to know and adhere to procedural rules. Courts consistently maintain that rules of the Court are not mere suggestions but are binding law designed to ensure the orderly administration of justice. The Supreme Court of Appeal of South Africa decision in Ingosstrakh vs. Global Aviation Investments (Pty) Ltd and Others (934/2019) [2021] ZASCA 69; [2021] 3 All SA 316 Page 18 of 21

page 18 of 38

(SCA); 2021 (6) SA 352 (SCA) (4 June 2021) is Page 19 of 21

page 19 of 38

a salutary lesson that the Court does not look favourably on procedural non-compliance without good cause. 7. When legal practitioners fail to familiarize themselves with court-specific and appellate rules, they do so at their client's peril. In Saloojee and Another NNO vs. Minister of Community Development 1965 (2) SA 135 (A), a foundational South African case established that practitioners cannot simply disregard timelines or rule requirements and expect the court to automatically grant condonation. In Mulaudzi vs. Old Mutual Life Assurance Company (South Africa) Limited [2017] ZASCA 88, the Court restated that knowledge of the rules of the appellate court is a baseline prerequisite for practicing before it. Practitioners are under a strict professional duty to familiarize themselves with appellate protocols (such as indexing, record timelines and security for costs) because appellate litigation is vastly different from trial litigation. 8. As mentioned above, the respondent’s counsel premised his submissions on the Civil Procedure Rules and never addressed the prerequisites Page 20 of 21 for a Rule 5 (2) (b)

page 20 of 38

application. He Page 21 of 21

page 21 of 38

maintained that this Court must scrutinize whether the applicants have demonstrated substantial risk or irreparable harm or that the appeal will be rendered nugatory. It was his submission that stay should not be granted unless there is clear evidence of potential harm or injustice. The respondent’s counsel described the application as “premature” claiming that the appeal is yet to be filed. This assertion does not represent the correct legal position clearly stipulated in Rule 5 (2) (b). The jurisdiction of this Court under Rule 5 (2) (b) is triggered by filing of a competent notice of appeal. Perhaps, it is also important to mention that the Court of Appeal Rules, 2022 defines an appeal to include an intended appeal. We say no more. 9. As highlighted in paragraph (1) of this ruling, the applicants are seeking two substantive prayers, namely, stay of execution of the Judgment of the Chief Magistrate Court in Chief Magistrate’s Court at Narok ELC Civil Case No E025 of 2022 pending the lodging, hearing and determination of their intended appeal against the ruling delivered on 19th March 2026 in Narok ELC Civil APP E011 of Page 22 of 21

page 22 of 38

2025 and an order restraining the respondent or her agents from evicting the 1st Page 23 of 21

page 23 of 38

applicant from her house located on her share of the suit land pending the lodging, hearing and determination of the intended appeal against the said ruling. 10. A pertinent question, namely, whether this Court can stay proceedings before a magistrates Court is worth answering at the outset because under Kenya's judicial hierarchy, the Court of Appeal does not possess direct supervisory jurisdiction or administrative control over subordinate courts such as the Magistrates' Courts. (See Odidio Spark Limited vs. Kenya Commercial Bank (Civil Appeal (Application) E422 of 2021) [2022] KECA 426 (KLR) (4 March 2022) (Ruling) Neutral citation: [2022] KECA 426 (KLR)). 11. Undeniably, this Court’s jurisdiction is primarily appellate, dealing with appeals arising from the High Court and Courts of equal status. This Court in Odidio Spark Limited vs. Kenya Commercial Bank (Supra) explicitly held that an application inviting it to stay proceedings before a Magistrates' Court is incompetent because the Court of Appeal lacks direct supervisory Magistrate’s Court. Under Article Page 24 of 21 powers over the

page 24 of 38

165 (6) of the Constitution, supervisory jurisdiction over Subordinate Courts is vested exclusively in the High Court. 12. However, while a litigant cannot file an application in the Court of Appeal to directly freeze a Magistrate's case, a stay of the Magistrate's proceedings can happen indirectly through the following sequence: (a) A party aggrieved by a Magistrate's interlocutory decision or ruling first files an appeal or a judicial review application at the High Court or the courts of equal status. (b) The High Court or the courts of equal status either grants or denies a stay of the Magistrate's proceedings. (c) The aggrieved party then appeals that specific decision from the High Court or courts of equal status to the Court of Appeal. (c) Under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, the Court of Appeal has the power to grant a stay of execution, an injunction or a stay of proceedings pending the determination of the appeal before it. If the underlying matter originates from a Magistrate's Court, the Court of Appeal's order staying the High Court's orders or proceedings will effectively freeze or dictate the status of the related trial at the Magistrates' Court. To approach the Court of Appeal, there must already Page 25 of 21

page 25 of 38

be an active, appealable order or ruling extracted from the High Page 26 of 21

page 26 of 38

Court or courts of equal status. From the foregoing statement, we are persuaded that the applicants before us appealed to the ELC, their appeal was dismissed, and aggrieved by the said decision, they lodged a notice of appeal, and properly invoked this Court’s jurisdiction under Rule 5 (2) (b). Therefore, any order of stay or injunction issued by this Court against the ELC decision will effectively freeze the Magistrate’s Court’s decision. 13. Rule 5 (2) (b) of the Court of Appeal Rules, 2022 grants the Court of Appeal original and discretionary jurisdiction to issue interim reliefs pending the hearing and determination of an appeal. These interim reliefs include: (a) a stay of execution; (b) an injunction, (c) a stay of any further proceedings. (See Gathumbi vs. Gathumbi (Civil Application E068 of 2022) [2026] KECA 514 (KLR) (13 March 2026) (Ruling)). 14. This Court has repeatedly and consistently ruled that the applicable principles and considerations are exactly the same, whether an applicant is seeking a stay of execution, a temporary injunction or a stay of proceedings. Under Page 27 of 21

page 27 of 38

Rule 5 (2) (b), an injunction is evaluated using appellate criteria Page 28 of 21

page 28 of 38

rather than the traditional High Court standard for interlocutory injunctions enunciated in the land mark decision in Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. In Bett vs. Olamroi & 2 Others (Civil Appeal (Application) E428 of 2022) [2023] KECA 169 (KLR) (17 February 2023) (Ruling), this Court explicitly stated that whether the application involves a stay of execution, injunction or further proceedings, the considerations and applicable principles remain the same. In Gathumbi vs. Gathumbi (supra), this Court highlighted that the criteria governing an injunction under Rule 5 (2) (b) align with those for a stay both aimed at preserving the appeal's substratum. 15. This application will turn on the question whether the applicants have demonstrated that they have an arguable appeal, and whether absent of stay, their appeal will be rendered nugatory. An "arguable appeal" is one that raises at least one bona fide issue worthy of consideration by the Court. It does not mean the appeal must necessarily succeed. It simply means the grounds are not "trifling" and deserve a full hearing. (See this Court’s decision in Page 29 of 21

page 29 of 38

Kenafric Matches Ltd vs. Match Masters Limited & Another (Civil Application Page 30 of 21

page 30 of 38

E092 of 2021) [2021] KECA 188 (KLR). However, in determining the question whether an appeal is arguable, this Court is constrained not to make definitive findings of fact or law at this stage to avoid "embarrassing" the bench that will hear the main appeal. With this limitation in mind, it will suffice for us to mention that whether or not a person who was not a party before a trial court and is affected by the decision can mount an appeal against the decision is an arguable ground. Whether or not the 1st applicant was a necessary party to the proceedings before the trial court is also an arguable ground just like whether the omission to join her to the proceedings infringed her fair trial rights. Similarly, whether the decision by the two courts below deprived her property without affording her a hearing is an arguable ground, just like the question whether a court of law can render a judgment that adversely affects a party who was not before it. We have looked at all the grounds urged by the applicant. We are alive to the fact that an applicant is not required to demonstrate as multiplicity of grounds. Even one single ground will suffice. Without saying more, we are persuaded that the applicant has Page 31 of 21

page 31 of 38

demonstrated the existence of an arguable ground. Page 32 of 21

page 32 of 38

16. The other requirement is that an applicant must prove that unless stay or injunction is granted, the success of the appeal (if it eventually succeeds) will be rendered nugatory, that it, the victory would be rendered worthless, futile or invalid. The applicant must satisfy the Court that the harm is irreversible. Speculative fears or theoretical losses do not meet this threshold. (See Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR). 17. In this case, it has been stated that the 1 st applicant has been occupying a portion of the suit land for many years. The other portion is occupied by her co-widow. The key question remains, what would happen, absent of stay. The possibility of an eviction is real. This Court has consistently held that evicting a person from their home or land pending an appeal constitutes an irreversible action that effectively renders a successful appeal nugatory. (See Bett vs. Olamroi & 2 Others (Civil Appeal (Application) E428 of 2022) [2023] KECA 169 (KLR) (17 February 2023) (Ruling)). 18. Under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, when evaluating whether an appeal will be rendered Page 33 of 21

page 33 of 38

nugatory (the Page 34 of 21

page 34 of 38

second limb of the twin principles), the Court draws a sharp line of distinction between a money decree (which is easily reversible by a refund) and land or a home, which carries unique physical, structural and emotional attachments that cannot be adequately remedied by damages. The court in Bett vs. Olamroi & 2 Others (supra) held that allowing an eviction order to proceed while an appeal is pending opens the door to the cancellation of title deeds and the physical destruction of property. The court stated that such an eventuality would be "onerous, if not impossible, to undo" and that it is impractical to suppose the aggrieved party can be compensated by damages if they win the main appeal. 19. This Court in Thamaini vs. Thamaini & 2 Others (Civil Application E225 of 2022) [2022] KECA 1093 (KLR) (7 October 2022) (Ruling), a family and a matrimonial land dispute, in which the applicant faced eviction from what they considered their ancestral home, granted a stay, explicitly stating that taking possession of land and throwing an occupant out are "irreversible actions thereby rendering the appeal if successful, nugatory." Page 35 of 21

page 35 of 38

20. The 1st respondent has maintained that she has been in occupation of part of the suit land which she relies on for her subsistence. She has stated that the other half is occupied by her co-widow. In our view, absent of a restraining order opens the door for her eviction and possible demolition of her home and her only means of subsistence, which is the land. The effect of such an eventuality is irreversible in the event she is evicted and ultimately wins the appeal. We find that the applicant has satisfied the nugatory aspect. 21. Accordingly, we allow the application dated 4th June 2026 and issue the following orders: a) The respondents either by themselves or their agents or servants are jointly and severally restrained from evicting the 1st applicant from her house's share of Cis Mara/Noletukat/60 (the suit land) pending the lodging, hearing and determination of the intended appeal against the ruling delivered on 19th March, 2026 in Narok Environment Land Court Civil Appeal E011 of 2025, Naipe Ene Nkere & 3 Others v Tipina Enole Page 36 of 21

page 36 of 38

Nkere which seeks to overturn the decision rendered by the Chief Magistrate’s Court at Narok ELC Page 37 of 21

page 37 of 38

Civil Case No E025 of 2022 Tipina Enole Nkere v Lewis Sarupa Nkere and Partoti Ole Nkere. b) The costs of this application shall abide the outcome of the intended appeal. Dated and delivered at Nakuru this 25th day of September, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I confirm that this is a true copy of the original Signed. DEPUTY REGISTRAR. Page 38 of 21

page 38 of 38