https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1097

Kiptum v Wamoto & 5 others (Civil Application E034 of 2026) [2026] KECA 1097 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1097 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E034 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA June 12, 2026 Between Andrew Kiptum & 23 others Applicant and Patrick Simiyu Wamoto 1st Respondent Caroline Mwikali Musyimi (Sued as the legal representative of the Estate of Paul Ndeto Musyimi Nang’Ela - Deceased) 2nd Respondent The County Surveyor Trans Nzoia County 3rd Respondent Kenya Rural Roads Authority 4th Respondent Land Registrar 5th Respondent National Land Commission 6th Respondent (An application for stay of execution from the judgment and decree of the Environment and Land Court at Kitale (C.K. Nzili, J.) delivered on 10th December 2025 in ELC Case No. 25 of 2021) Ruling 1.By Notice of Motion dated 8th April 2026, the applicants have invoked rules 5 (2) (b) and 49 of this Court’s Rules 2022 seeking a stay of execution of the judgment and decree of Nzili, J.,}delivered on 10th December 2025 in the Kitale ELC Case No. 25 of 2011, pending the hearing and determination of an intended appeal. In the alternative, the applicants seek an order of preservation/status quo as at the time the judgment was delivered, pending the determination of the intended appeal. The application is supported by the grounds on its face and the affidavit of the 8th applicant, sworn on 8th April 2026. 2.The gist of the Motion is that by judgment of the trial court, the 1st and 2nd respondents were found to be the lawful owners of title numbers Kipsagat/Chepkoilel Block 2/Kipsogon/38 and 9.In that vein, the appellants were barred by an order of injunction from interfering with their quiet enjoyment of the suit land. The court further ordered the titles issued in the names of the applicants be canceled. The applicants were also restrained from blocking the access road by creating plots on the road reserve belonging to the 4th respondent and on the 1st and 2nd respondents’ parcel of land. Further, the applicants’ counterclaim was dismissed for want of competency. 3.It is these reasons that have precipitated the applicants to file a notice of appeal on 23rd December 2025. They have since sought for typed proceedings. They stated that their appeal was arguable as per the annexed undated draft memorandum of appeal that raised 31 grounds disputing the findings of the trial court. On the nugatory aspect, they were apprehensive that threat to execution was imminent and they would be rendered landless. 4.The 1st and 2nd respondents relied on the 2nd respondent’s replying affidavit, sworn on 6th May 2026, opposing the application. They argued that by dint of order 42, rule 6 (2) of the Civil Procedure Rules, this application failed to meet the threshold therein. It was therefore incompetent. Furthermore, the orders issued by the learned judge were well reasoned, well founded in law and cannot be faulted. We should point out to the respondents, and this is rudimentary, that this ought to be within the knowledge of their Counsel, that this Court’s jurisdiction is not based on the Civil Procedure Act or Rules but the Appellate Jurisdiction Act and the Court of Appeal Rules, 2022. 5.The respondents further argued that granting a stay would mean sanctioning the illegal use of a public road reserve by the applicants, against the express provisions of the Kenya Roads Act. It was their considered view that if the orders sought are granted, they would be denied access to their parcels of land. For this reason, public interests outweighed their private interests. In addition, they would be denied the benefit of enjoying the fruits of their judgment. They prayed that the application be dismissed with costs as they stood to suffer prejudice, yet the application was unmeritorious. 6.The application was disposed of by way of written submissions that were orally highlighted on 11th May 2025. Learned counsel Mr. Kiarie, was present for the applicants while Miss. Nabwile, learned counsel for the 1st and 2nd respondents, was also present. The Court was satisfied that the hearing notice was duly served upon all the parties on record. However, the 3rd, 4th, 5th and 6th respondents were absent. 7.In their written submissions and case digest both dated 7th May 2026, learned counsel for the applicants submitted that the intended appeal was arguable in light of the grounds of appeal raised in their draft memorandum of appeal. On the nugatory aspect, it was submitted that if stay was not granted, there was imminent threat of execution, rendering the appeal an academic exercise. They urged this Court to allow the application as prayed. 8.The 1st and 2nd respondents filed their joint written submissions dated 6th May 2026 to submit that the application failed to meet the threshold under order 42, Rule 6 of the Civil Procedure Rules. Reiterating the contents of the 2nd respondent’s affidavit, learned counsel argued that the application was a non-starter and was for dismissal. 9.We have considered the application, the affidavit in support, the annexures thereto as well as the affidavit in opposition. We have also examined the parties’ written submissions and analyzed the law. This is an application for stay of execution pending appeal. To succeed, an applicant must satisfy the following twin conjunctive principles under rule 5 (2) (b) of this Court’s rules: that the appeal is arguable and would be rendered nugatory if stay is not granted. 10.At the risk of repetition, we remind the parties that contrary to the 1st and 2nd respondent’s position, this Court, a creature of statute, that is the Appellate Jurisdiction Act, and the Rules thereunder, is not governed by the provisions of the Civil Procedure Rules. As such, insofar as their arguments titled to those provisions, we shall not consider them. 11.On whether an appeal is arguable, this Court in, Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] KECA 199 (KLR) adopted the ruminations of K. M’inoti, JA when he stated as follows in Joseph Wanjohi Njau -vs- Benson Maina Kabau- Civil Application No. 97 of 2012:“The Court of Appeal has observed that an arguable appeal is not one that must necessarily succeed but is one which ought to be argued fully before the Court.” 12.The applicants have annexed a draft memorandum of appeal that raised 31 grounds disputing the findings of the learned judge. We note that amongst the grounds of appeal is: whether the 1st and 2nd respondents proved their case to the required standard; whether the judge failed to appreciate that the main issue was a boundary dispute between the parties; and whether the applicants’ titles are in a road reserve. Without going into the merits of those grounds, we are satisfied that they are arguable. As to whether those grounds of appeal will succeed or not, we leave it to the bench that will determine the appeal. 13.On the nugatory aspect, we are alive to the fact that each case must depend on its own facts and peculiar circumstances. Furthermore, 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. [See Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] KECA 378 (KLR)]. 14.We have anxiously considered this issue and the conflicting positions taken by the parties. We note that the learned judge held that the applicants’ titles fell on a road reserve. The applicants vehemently deny this position. On their part, the respondents’ position is that the titles fall on a road reserve and granting a stay will mean that the applicants will block access to their land. 15.In balancing these two rival positions, we are persuaded by the respondents' arguments that the intended appeal will not be rendered nugatory. The main issue for determination in the appeal is whether the applicants’ titles are on a road reserve or not. If indeed the appeal was to succeed, it would be possible to revert to their original position in the event the Court was to hold that the applicants’ titles are not on a road reserve, and therefore, the intended appeal will not be rendered nugatory. 16.Accordingly, the applicants have failed to satisfy the second limb of the twin principles, and the application fails. The costs of the application shall abide the outcome of the appeal.It is so ordered. DATED AND DELIVERED AT ELDORET THIS 12TH DAY OF JUNE, 2026.M. GACHOKA C. Arb, FCIArb.........................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. M. NDOLO....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR