Melitus Charles Nyongesa v Zakayo Waswa

& Tuiyott, JJ.A) delivered on 23rd June 2023 in KSM Civil Appeal No. 49 of 2018, which declared the respondent the lawful owner of the suit property and found that the applicant had fraudulently Subsequently, the Page 2 of 4 acquired the title.

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applicant filed an application for review of the said judgment, which was dismissed by a ruling delivered by this Court (Asike- Makhandia, Omondi & Muchelule, JJ.A) on 24th October 2025, thereby affirming the previous bench’s decision. 2. During the highlight of submissions on 13th July 2026, the Court heard oral arguments from Ms. Atamba, learned counsel for the applicant, and Mr. Akhaabi, learned counsel for the respondent. Ms. Atamba submitted that the intended appeal is arguable on the grounds that the ELC went out of its jurisdiction to issue execution orders for eviction and vacant possession when the original judgment of the Court of Appeal did not explicitly pronounce itself on those specific issues. She argued that title is not automatically synonymous with possession, while relying on the Constitution, Section 13 of the ELC Act, and the principles of fair administrative action. She further submitted that the appeal would be rendered nugatory if the stay is not granted, as the applicant would be evicted and rendered homeless. 3. Opposing the application, Mr. Akhaabi submitted that the dispute, which has spanned 26 years, was conclusively determined by this Court on 23rd June 2023 and the subsequent application for review was dismissed on 24th October 2025. He argued that the ELC's ruling merely enforced this Court's final orders, and relied on Section 24 of the Land Registration Act to submit that possession follows title. Mr. Akhaabi pointed out that the applicant was approbating and reprobating, having previously objected to a fresh suit for eviction at the ELC on grounds Page 3 of 4

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that it was sub judice, only to now demand that a substantive suit be filed. He argued Page 4 of 4

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that the twin limbs of arguability and the nugatory test had not been met, as land cannot be dissipated and the issue of ownership is already settled. 4. The jurisdiction of this Court under Rule 5(2)(b) of the Court of Appeal Rules is discretionary. 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. An arguable appeal is one that is not frivolous, requiring only a single bona fide point. 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. 5. Applying these principles to the applicant's contention, the intended appeal seeks to challenge the ELC's issuance of execution orders for eviction on the basis that this Court's original judgment did not explicitly pronounce itself on vacant possession. Without making any definitive findings on the merits of the intended appeal or the correctness of the ELC's interpretation of Section 24 of the Land Registration Act at this stage, we are willing to accept that this is an arguable point of law. Consequently, the applicant has satisfied the first limb of the test. 6. On the nugatory aspect, it is trite that land is a stable, identifiable asset that cannot be dissipated. The execution of an eviction order is inherently a reversible process. Without delving into the merits, should the intended appeal ultimately succeed on its procedural grounds, the applicant can be restored Page 5 of 4 to possession, and any

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quantifiable loss occasioned compensable in Page 6 of 4 by the eviction is

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damages. As was held in Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd [2002] 1 EA 227, the consideration of whether an appeal will be rendered nugatory turns on whether what is sought to be stayed is reversible, or if not, whether damages would reasonably compensate the aggrieved party. Furthermore, as noted in Mohamed Salim t/a Choice Butchery v Nasserpuria Memon Jamat [2013] eKLR, the applicant's right of appeal must be balanced against the successful party’s equally weighty right to enjoy the fruits of their judgment. The nugatory limb therefore fails. 7. 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. 8. Orders accordingly. Dated and delivered at Kakamega this 25th day of September, 2026. P. NYAMWEYA ......................... ............ JUDGE OF APPEAL ALI-ARONI ......................... ............ JUDGE OF APPEAL R. NGETICH ........................ ............ JUDGE OF APPEAL Page 7 of 4

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I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Page 8 of 4

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