Esther Muthoni Gakuru & 4 Others v Mary Wanjiku Muhindi

proceedings against the respondent’s interference with Magutu/Gatei/1587 and 1588 Page 2 of 8

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(hereinafter referred to as the suit properties), pending determination of the intended appeal. In the alternative, it seeks conservatory orders pending determination of the intended appeal. 2. The application is predicated on the grounds on the face of the application, and the supporting affidavit of the 1st applicant sworn on 15th September 2025, where it is deposed that the applicants have already filed an appeal being Civil Appeal No. E177 of 2025; the appeal has a very high chance of success and will be rendered nugatory if the orders sought are not granted; on 12th September 2025, the respondent sent auctioneers, together with the police, pursuant to an order of eviction dated 25th April 2025; the applicants are in occupation of the suit properties and would be rendered destitute should execution proceed; the respondent will not suffer any prejudice if orders are granted as she is not in occupation of the suit property. 3. It is deposed further that in the main appeal, the applicants intend to argue that the court erred in failing to analyse the evidence; their Constitutional right to a fair hearing was infringed; and that section 28(1) of the Land Registration Act 2012 was misconstrued, leading to a miscarriage of justice. They also argue that the court erred in holding that they had alternative land when none had been demonstrated to the court, and that the dismissal for the reason of the respondent's death was erroneous, as substitution was not possible in the circumstances. They Page 3 of 8

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further contend that the trial court erred in failing to find that the caution on the suit properties had been Page 4 of 8

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illegally removed prior to the transfer, and that the judgment fell short of evidence. 4. The respondent filed a replying affidavit sworn on 18 th September 2025 in opposition to the application wherein she deposes that it has been over 3 years since the impugned judgment, yet the applicants who were directed to vacate the suit property within 90 days have ignored the court order; the applicants are not prejudiced by the judgement as they had already left the property only to return upon their father’s death; the applicants have not demonstrated any substantial loss they will suffer and have not offered any security; the application is an abuse of court process and ought to be dismissed with costs. 5. Learned counsel for the applicants filed submissions dated 19th September 2025, in support of their application and argues that the applicants are in danger of being evicted from the suit properties where they all reside since 1986, and some have young families; that the eviction will render them homeless. In support of this assertion, counsel relies on Republic vs Kenya Anti-Corruption Commission & 2 Others [2009] KECA 370 (KLR), where this Court held that an applicant must demonstrate both an arguable appeal and that dismissal of the application will render the appeal nugatory. He also cites Dennis Mogambi Mang’are vs Attorney General & 3 Others [2012] KECA 251 (KLR), in which the Court held that an arguable appeal is not necessarily one that must Page 5 of 8

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succeed. Page 6 of 8

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6. On the part of the respondent, learned counsel filed submissions and a case digest, both dated 25 th September 2025, and argues that the power to grant an injunction pending appeal is reserved for exceptional cases. Further, the applicants have not provided any evidence to demonstrate that their case qualifies as exceptional. He argues that the applicants are already in contravention of court orders issued in Karatina ELC No. 10 of 2018, as they have failed to vacate the suit property of their own volition, thereby warranting the respondent to seek further orders for eviction. 7. Counsel submits further that the applicants had previously vacated the suit property after their father sold the property to the respondent and that their return was forceful and illegal upon the death of their father. Therefore, they cannot claim to be destitute as the prior moving indicates they have another home. 8. Counsel submits that the applicants have the duty to show that they deserve an injunction and must provide cogent evidence of the loss they are likely to suffer, and that if injunctive orders are not issued, the appeal will be rendered nugatory. Counsel urges further, that the Court must consider the conflicting claims of both parties when determining if an appeal would be rendered nugatory as held in Board of Management Kaimosi Teachers Training College vs. Pambazuka Builders Construction Company Limited & Another [2025] Civil Application Page 7 of 8

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No. E263 of 2024 KECA 662 (KLR). Page 8 of 8

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9. Further, he contends that the applicants have not shown that they are willing to provide security, without which the Court has no power to grant the orders sought. In support of this contention, he relies on CMM vs TOL [2025] Civil Application No. E237 of 2025 KECA 1481 (KLR), where this Court dismissed an application having found the threshold under rule 5(2)(b) had not been met. 10. In order to succeed, in an application under rule 5(2)(b) of the Rules, an applicant must demonstrate two limbs: first, that the intended appeal is arguable (that is, it is not frivolous); and second, that unless the orders sought are granted, the appeal will be rendered nugatory. These principles have been consistently applied by this Court and were enunciated in Stanley Kangethe Kinyanjui vs. Tony Ketter & Others [2013] eKLR, as follows: “…in dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge’s discretion to this Court. The first issue for our consideration is whether the intended appeal is arguable. This Court has often stated that an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous; a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable.” Further, in Kenya Industrial Estate & Another vs. Matilda Tenge Machia Civil Application No.211 of 2020, as regards the nugatory aspect, this Court stated: Page 9 of 8

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“On the nugatory aspect, whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 11. The applicants argue that the trial court failed to properly reevaluate evidence and erred in concluding that they had alternative land without evidence, thus violating their rights. However, we have considered the judgment sought to be challenged and the material placed before the trial court. The applicant’s husband and father, who was the registered owner of the suit property, sold the same and moved his family away, just for the wife and children to return upon his death, claiming fraud and customary trust. We need not go to the merits of the grounds of appeal, but prima facie, we do not see any arguable grounds to have been demonstrated. 12. Even with the assumption that the applicants have raised an arguable appeal, they are required to satisfy the second limb that the appeal will be rendered nugatory if the injunction is not granted. 13. The principles guiding the nugatory aspect are settled. The Court considers whether what is sought to be stayed is reversible, and if not reversible, whether damages would reasonably compensate the applicant. This was re-stated in Kenya Hotel Properties Page 10 of 8 Limited vs. Willesden

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Investments Ltd [2011] KECA 388 (KLR). Page 11 of 8

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14. The applicants argue that they will suffer hardship if evicted. However, the respondent has demonstrated, and it has not been effectively controverted, that the applicants had previously vacated the suit property and moved elsewhere. If indeed the applicants moved to another land and established another home, then eviction from the suit properties does not translate into irreparable harm. Further any loss they may incur may be compensated or reversed in the event of a successful appeal. 15. In Speaker of the National Assembly & Another vs Orange Democratic Movement Party & 8 Others (Civil Appeal (Application) E907 of 2024) [2025] KECA 681 (KLR), this Court emphasized that the nugatory limb is not established by mere allegations. An applicant must place material before the Court to demonstrate actual prejudice likely to occur. 16. It is also not lost to us that in exercising its discretionary power under rule 5(2)(b), the Court must do so judiciously and in the interests of justice. An injunction is an equitable remedy, and a party who comes to court seeking equity must do so with clean hands. In Blue Waters Hotel Ltd & 2 Others vs. Guaranty Trust Bank (Kenya) Limited (Civil Appeal E081 of 2020) [2025] KECA 1421 (KLR), this Court stated: “…an injunction is an equitable remedy, granted to those who seek it with clean hands and prepared to do equity. Looking at the entire history of the dispute and the Page 12 of 8

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accommodations availed to the appellants by the respondent at their request, we doubt whether the appellants’ conduct was anything but equitable.” Page 13 of 8

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17. Upon considering the application, affidavits, submissions, and the law, we find that the applicants have failed to satisfy the twin principles under rule 5(2)(b). They have not established that their intended appeal is arguable, nor have they demonstrated that the appeal would be rendered nugatory if the orders sought are not granted. 18. In the circumstances, the application fails. It is dismissed with costs to the respondent. Dated and delivered at Nyeri this 25th day of September, 2026. S. ole KANTAI ...................................... .. JUDGE OF APPEAL ALIARONI ...................................... .. JUDGE OF APPEAL G.V. ODUNGA ...................................... ... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 14 of 8

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