https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1012

Malayi v Church Commissioners of Kenya (Civil Application E020 of 2026) [2026] KECA 1012 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1012 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E020 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA May 29, 2026 Between Alex Watty Malayi Applicant and The Church Commissioners of Kenya Respondent (An application for injunction from the Ruling and Order of the Environment and Land Court at Eldoret (C.K. Yano, J.) delivered on 19th February 2026 in ELC (OS) No. E018 of 2024) Ruling 1.In his Notice of Motion dated 27th February 2026, the applicant has invoked rules 5 (2) (b), 44 and 45 of this Court’s Rules 2022, seeking an order of injunction, restraining the respondent from evicting him from land parcel number L.R. No. Eldoret Municipality Block 15/2026, or in any other manner, dealing with the same pending the hearing and determination of his intended appeal. The application is hinged upon the grounds on its face, together with the applicant’s supporting affidavit and supplementary affidavit, sworn on 27th February 2026 and 23rd March 2026 respectively. 2.The fundament of the application is that the applicant filed Eldoret ELC (OS) No. E018 of 2024, primarily seeking adverse possession over a portion of L.R. No. Eldoret Municipality Block 15/2026. By an application dated 30th October 2025, the respondent sought orders to strike out the suit, and in his ruling dated 19th February 2026, Yano, J. found the application merited. Consequently, the applicant’s suit was struck out with costs. 3.The applicant is aggrieved by those findings. The basis of his dissatisfaction is that contrary to the trial court’s findings, the suit was not res judicata as he was not a party to the suit, purported to be related to the one he had filed, that is Eldoret ELC No. 209 of 2014. He also questioned whether his application for joinder as an interested party, in the said suit, which was subsequently withdrawn, barred him from filing a subsequent suit. He annexed his draft memorandum of appeal in his supplementary affidavit, and for those reasons, he argued that his appeal was arguable. 4.The applicant urged this Court to allow the application as he had filed his notice of appeal. Furthermore, the appeal would be rendered nugatory if injunctive orders are not issued. This is on account of the fact that he had set up structures on the parcel of land. He urged that it was necessary to preserve the subject matter of the appeal. 5.The respondent relied on the replying affidavit and further affidavit of Archdeacon Ben Birech, the respondent’s administrative secretary, sworn on 17th March 2026 and 7th April 2026 respectively, opposing the application. Pertinently, it was averred that the respondent was the lawful proprietor of the entire suit land. He observed that since no draft memorandum of appeal was annexed to the application, the applicant failed to demonstrate that his appeal was arguable. He further went into details explaining why the impugned ruling was sound. 6.On the nugatory aspect, the respondent averred that to allow the orders would be tantamount to unfairly freezing the activities of the respondent on the suit land. In any event, the determination of ownership of the suit land was final as no appeal was preferred. Additionally, if the applicant suffered irreparable harm, he would be compensated by an award of damages. 7.The respondent further pointed out that an eviction process was carried out on 24th March 2026 in pursuance of the orders issued in Eldoret ELC Cause No. 209 of 2014. The applicant was evicted and his structures demolished. There was therefore nothing to preserve. The respondent urged this Court to allow it to enjoy the benefits of the judgment by dismissing the application with costs. 8.When the application was heard on 6th May 2026, learned counsel Mr. Momanyi was present for the applicant, while learned counsel Miss Chirchir appeared for the respondent. The applicant’s written submissions dated 21st April 2026, were relied on by counsel to submit that the application had met the threshold set out in law. On her part, the respondent’s counsel filed written submissions, a case digest and a list of authorities, all dated 30th April 2026, to submit that the application was for dismissal as it was devoid of merit. 9.We have considered the application, the affidavits, as well as the annexures thereto. We have also considered the written submissions of the parties and analyzed the law. To succeed in an application for an injunction, an applicant must satisfy the following twin conjunctive principles under rule 5 (2) (b) of this Court’s Rules: the appeal is arguable and would be rendered nugatory if stay is not granted. 10.On the arguability of the appeal, it is trite law that an arguable appeal does not necessarily mean one which will succeed. [See Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR)]. Furthermore, the applicant only needs to demonstrate that at least one ground is arguable. In this case, the applicant was emphatic that since he was not a party to Eldoret ELC Cause No. 209 of 2014, the trial court applied incorrect principles in finding that the subject suit was res judicata. This issue was raised in the body of his application. We find that the ground is arguable. As to whether the appeal will succeed on that ground, we will leave that to the bench that will determine the appeal. 11.Turning to the nugatory aspect, this Court in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] KECA 378 (KLR) held that 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. 12.We note that in the respondent’s further affidavit sworn on 7th April 2026, it was deposed that pursuant to the orders of Eldoret ELC Cause No. 209 of 2014, the applicant was evicted from the suit parcel of land on 24th March 2026 and his structures demolished. This is the basis of his application. Those averments were neither denied nor challenged by the applicant. We are therefore left wondering what there is to stay as the orders sought have already been overtaken by events. We therefore find that for those two reasons, the second limb has not been satisfied. 13.In view of the above, we come to the inescapable conclusion that the Notice of Motion dated 27th February 2026 lacks merit. It is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY, 2026.M. GACHOKA C. Arb, FCIArb.....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALL. N. NDOLO....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR