Mutoro v Muyelele

next day, Michael Nasimolo Muyelele (the respondent) took possession of the land without a court order and started farming it; the applicant had lodged an appeal against the judgment; the appeal raised arguable points with overwhelming chances of success and that he stood to suer irreparable loss and damage if the orders sought were not granted. 3. The respondent led a replying adavit sworn on 20th July 2026 in opposition to the application attesting that the application was misconceived and an abuse of the court process; the applicant had never been in possession and had only trespassed into the suit property and was staying in a dierent parcel of land. 4. The applicant led submissions dated 16th July 2026 wherein he urged that the appeal he had led raised arguable points and these included whether the superior court erred in not nding that he had established adverse possession; whether the superior court erred in nding that entry with the agreement of a person not registered as the owner could defeat the action for adverse possession; whether the superior court erred in rejecting the claim for 1 acre out of the 2 acre suit property and whether a report to the police in 2025 and a dispute lodged with the Land Disputes Tribunal interrupted the time for purposes of adverse possession from running. 5. The applicant also urged that the appeal would be rendered nugatory because the respondent had forcefully and without a court order taken possession of the suit property and farmed it. 6. The respondent did not le any submissions. 7. We heard the application on 22nd July 2026. Learned counsel Mr Were appeared for the applicant while learned counsel Mr Simiyu Wamalwa appeared for the respondent. The parties made brief oral submissions. 8. A party invoking the Court’s jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules, 2022 should demonstrate that the appeal or intended appeal is arguable (not frivolous) and that if a stay or injunctive order is not granted, then the appeal would be rendered nugatory (eects would be irreversible) (see Chris Munga N. Bichage v. Richard Nyagaka Tongi & 2 Ors (2013) KECA 141 (KLR) where this Court stated that: “ The law as regards applications for stay of execution, stay of proceedings, or injunction is now well settled. The applicant who would succeed upon such an application must persuade the court on two limbs, which are rst, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.” 9. Some of the grounds which the applicant raised included whether the superior court erred in nding that he had met the threshold for adverse possession and that a dispute before the Land Disputes Tribunal interrupted the quiet enjoyment, exclusive and uninterrupted possession of the suit property. 10. These points, we agree, are arguable. But we must also determine whether the applicant has made a case that the appeal would be rendered nugatory. In considering the nugatory limb of the jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules, 2022, this Court stated in Robert Mutiso Lelli v Kenya Medical Training College & 2 Ors (2020) eKLR that: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2073/eng@2026-09-25 2

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„„As to whether the appeal will be rendered nugatory should stay not be granted, the factors which can render an appeal nugatory are to be considered within the circumstances of each particular case and in doing so, the court is bound to consider the conicting claims of both sides.## 11. The applicant has not placed before us any credible evidence that he was in occupation of the suit property and that he would be occasioned irreversible harm if the orders sought were not granted. The supporting adavit to the application has not gone into any details to explain what sort of irreversible harm would be suered if the status quo order is not granted. 12. For the above reasons, we nd no merit in the application dated 4th May 2026, and it is dismissed with costs to the respondent. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. P. NYAMWEYA .................................. JUDGE OF APPEAL R. NGETICH ................................. JUDGE OF APPEAL RADIDO S. OKIYO ................................. 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/2026/2073/eng@2026-09-25 3

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