https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1359

Kaunja (Suing as the legal representative of the Estate of M’ndegwa M’kithaka - Deceased) v Mburugu & 3 others (Civil Application E017 of 2025) [2026] KECA 1359 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1359 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E017 of 2025 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Jane N. Kaunja Applicant Suing as the legal representative of the Estate of M’ndegwa M’kithaka - Deceased and Julius B. Marangu Mburugu 1st Respondent George Rutere Mburugu 2nd Respondent Alexander Gatumo Mburugu 3rd Respondent Taratisio Kirimi Mburugu 4th Respondent (Being an application for stay of execution against the Judgment and Decree of the Environment and Land Court in Meru (Yano, J.) delivered on 19th December 2024 in ELC No. 38 of 2019) Ruling 1.Before the Court is an application by way of notice of motion dated 7th February 2025, brought under rule 5(2)(b) of the Court of Appeal Rules 2022 (‘the Rules’), seeking a stay of execution of the judgment and decree of the Environment and Land Court (ELC) in Meru, in ELC case No. 38 of 2019, pending hearing and determination of the intended appeal and for costs of the application. 2.The application is based on grounds on the face of the application, and the affidavit of the applicant Jane Kaunja M’kithaka (suing as the legal representative of the Estate of M’ndegwa M’kithaka), sworn on 7th February 2025, stating that the notice of appeal was lodged timeously; the intended appeal is arguable and not frivolous as the trial court erred in failing to recognize that a customary trust had been established over the suit properties; if stay is not granted, the intended appeal will be rendered nugatory; the judgment is against the applicant who occupies the suit property and has lived there with her mother and siblings since the ‘80’s; the trial court ordered in its judgment that the applicant vacates the suit property within 90 days, failing which she would face eviction; the trial court failed to acknowledge the applicant’s claim of a customary trust over the suit property; additionally, the applicant is related to the respondents, as they are cousins sharing a common grandfather and if the stay is denied, the order ought to be granted to protect the applicant and her family from imminent eviction as they risk being evicted before the appeal is heard and determined. 3.In opposition, the 4th respondent, Taratisio Kirimi Mburugu, filed a replying affidavit sworn on 20th February 2025. He deposed that he is the sole registered owner of the suit property, which measures approximately 0.405 hectares, and has held the title since 31st March 1994, which is over 31 years; the applicant trespassed on suit property without permission and planted tea bushes; neither the applicant or her children have built on the suit property; and that the applicant has profited significantly from the tea bushes, to the detriment of the 4th respondent; he filed a counterclaim in the trial court where he sought for her to vacate the suit property or face forceful eviction along with her children and any agents; judgement was entered in his favour, giving the applicant 90 days, from the date of judgment, 19th December 2024, to vacate; the applicant seeks to perpetuate her illegal occupation through the current application; allowing the applicant to remain on the property would be unfair as she would continue to benefit from his land without basis; no draft memorandum of appeal has been availed to the court to enable it assess the grounds for the intended appeal; the court would thus be unable to determine whether the applicant has met the two mandatory conditions for granting a stay of execution pending appeal; the applicant will not suffer any loss, as the suit property belongs to the 4th respondent, is registered in his name, and the applicant never claimed ownership or a share of the same before the trial court. 4.The applicant filed a further affidavit sworn on 29th April 2025 in response to the 4th respondent’s replying affidavit and introduced her draft memorandum of appeal herein dated 28th February 2025. She avers that despite the 4th respondent being the registered owner of the suit property, he has never utilized or taken possession of it. Instead, her deceased father (prior to his death) and her family have continuously used this parcel of land, which is why they had sought one-third of it through the court; further she asserted that she has never vacated the suit property and that the suit property is customary land and her deceased father was entitled to one-third of it. 5.In support of the application, learned counsel for the applicant filed submissions and a list of authorities, both dated 28th April 2025. Counsel submitted that the trial court erred in holding that the applicant did not prove customary trust over the suit property and that the suit property belongs to the 4th respondent, when there was contrary evidence that the applicant and the respondents share a grandfather. He therefore contended that the applicant has an arguable appeal and relied on Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] KECA 378 (KLR). 6.On the nugatory aspect, counsel submitted that the trial court directed that the applicant vacates the suit property, which she and her family are in occupation of, within 90 days, failing which they would be evicted. Counsel contended that should the stay orders sought not be granted, there is an imminent risk that the 4th respondent will proceed to evict the applicant and her family from the said suit property, thus rendering the entire appeal nugatory. In conclusion, counsel submitted that the application meets the dual criteria outlined in rule 5(2)(b) of the Rules. 7.In opposing the application, learned counsel for the 1st to 4th respondents filed submissions dated 24th May 2025. On whether or not an order for a stay of execution should be granted, counsel referred to Amal Hauliers Limited vs. Abdulnasir Abakar Hassan [2018] KEHC 7512 (KLR), where the court quoted Butt vs. Rent Restriction Tribunal [1982] KLR 417, wherein the court stated that the granting of a stay of execution is a discretionary power, which should be exercised in such a way as not to prevent an appeal. 8.Further counsel submitted that in order to succeed, the applicant ought to show that her intended appeal is arguable and that, if successful, it would be rendered nugatory without a stay, as illustrated in Trust Bank Limited & Another vs Investech Bank Limited & 3 Others [2000] eKLR. 9.Counsel contended that the applicant only claimed to have an arguable appeal with high chances of success but did not expound on the issues she intended to raise in her appeal. On the nugatory aspect, counsel pointed out that the High Court, in its judgment, found that although the applicant claimed to reside on the suit property, she only cultivates the same. Further that, she failed to demonstrate any developments on the suit property that would be demolished if the stay orders are not granted. In support counsel relied on Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227, in which this court held that the factors that can render an appeal nugatory are to be considered in the circumstances of each particular case. Additionally, counsel argued that in the present application, the applicant has not demonstrated the hardship she would face if the stay of execution order were not granted. 10.The principles applicable to an application brought under rule 5(2)(b) of the Rules are settled. An applicant must satisfy two limbs: first, that the intended appeal is arguable, meaning that it is not frivolous; and second, that unless the orders sought are granted, the appeal, if successful, would be rendered nugatory. These principles have been reiterated in numerous decisions of this Court, including Trust Bank Limited & Another vs. Investech Bank Ltd & 3 Others [2000] KECA 11 (KLR). 11.On the first limb, an arguable appeal is not one that must necessarily succeed, but one that raises at least one bona fide point deserving of consideration by the Court. That position was succinctly stated in Stanley Kinyanjui vs. Ketter & 5 Others (Civil Application 31 of 2013) [2013] KECA 378 (KLR). 12.In the present application, the applicant asserts that the intended appeal is arguable on the basis that the learned Judge erred in dismissing her claim founded on customary trust. Other grounds of appeal are that the trial court: introduced issues for determination that were not pleaded by the parties; failed to find that the suit property belonged to the applicant and that the 4th respondent was a beneficiary of the estate of M’ndegwa M’kithaka. 13.A cursory look at the trial court’s detailed judgment indicates that the learned Judge found that the suit property was lawfully registered in the name of the 4th respondent, and that there was no basis upon which the court could infer a customary trust in favour of the applicant or the estate she represents. Without going into the merit of the intended appeal, we have to look at whether the grounds raised are prima facie likely to succeed; we are not persuaded that any arguable issue has been demonstrated. 14.Additionally, the evidence on record as summarised before us shows that the applicant admitted that she resides on a different parcel of land, namely Abogeta/U-Kiungone/810, and not on the suit property. This has been the position of respondents, who have consistently maintained that the applicant does not occupy the suit property, but only cultivates it. 15.The applicant has not placed before this court any cogent material to demonstrate actual occupation or possession of the suit property, such as residence, developments, permanent structures, or exclusive possession. On the contrary, the record indicates that the suit property is agricultural land and the applicant’s interaction has been limited to cultivation of tea bushes. 16.We are alive to the fact that occupation and possession are central to the applicant’s plea; however, in the absence of evidence that the applicant is in actual occupation, we are unable to discern what arguable point arises from the order of eviction, particularly given the findings by the trial court that the applicant is a trespasser. 17.As relates to the nugatory aspect, this Court has held that there must be demonstration by evidence and further depends on the circumstances of each case, as stated in David Morton Silverstein vs. Atsango Chesoni [2002] KECA 287 (KLR). 18.In the present case, there is no evidence that the applicant resides on the suit property or that there are developments likely to be demolished, which would cause irreparable loss that is incapable of compensation should the order of stay not be granted. The property is registered in the name of the 4th respondent, and there is no dispute either that he has held the title for decades. 19.In the end, the applicant having failed to satisfy the twin principles under rule 5(2)(b) of the Rules, we find the application is devoid of merit. It is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI............................................JUDGE OF APPEALJ. LESIIT............................................JUDGE OF APPEALALI-ARONI............................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR