https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1320

Kamau & another v Ngugi (Civil Application E085 of 2022) [2026] KECA 1320 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1320 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E085 of 2022 W Karanja, J Mohammed & LK Kimaru, JJA July 3, 2026 Between Antony Muchina Kamau 1st Applicant Stanley Kinuthia Kamau 2nd Applicant and Samuel Ndambo Ngugi Respondent (Being an application for an order of injunction and stay of execution pending the determination of an intended appeal from the judgment of the Environment and Land Court of Kenya at Murang’a (Gacheru, J.) dated 23rd June, 2022 in ELC Case No. 36 of 2020) Ruling 1.Before the Court is a notice of motion dated 27th October, 2022, brought under Rule 5(2)(b) of the Court of Appeal Rules, substantively seeking, inter alia, that this Court issue a stay of execution of the judgment and subsequent orders of the Environment and Land Court (ELC) in ELC Case No. 36 of 2022 given on 23rd June, 2022; as well as an order of injunction restraining the respondent from interfering in any way with land parcel No. Loc/4/Gakarara/1156/23 (the suit property). The background of the suit before the ELC is that the respondent filed a claim of customary trust against the 1st applicant, in relation to the suit property, and as against the 2nd applicant, who purchased the suit property from the 1st applicant. The ELC found that the 1st applicant held the suit property in trust for the respondent and ordered cancellation of the 2nd applicant’s title to the suit property. 2.The application is supported by grounds on its body and a supporting affidavit sworn by the 2nd applicant on the same date, together with annexures thereto. The 2nd applicant averred that he filed a notice of appeal dated 30th June, 2022, as well as a record of appeal, against the impugned judgment of the superior court. He asserted that his appeal is arguable, and has overwhelming chances of success. He urged that he was in possession of the suit property, and had fully developed the suit property by erecting a commercial building that is occupied by tenants running their respective businesses. He deponed that the trial court determined that he was a bona fide purchaser for value without notice of any defect on the title of the suit property. That based on that determination, the suit property was distributed to him through a succession cause, and he thereafter took possession. He urged that pursuant to the decree of the ELC, the respondent has threatened to cancel his registration and evict his tenants from the suit property, and demolish his buildings. He pointed out that if the orders sought are not granted, he will suffer irreparable loss which cannot be compensated with money, and his appeal, if successful, will be rendered nugatory. 3.The 2nd applicant further asserted that he has an arguable appeal for reasons that: the respondent will be unjustly enriched if he took possession of the suit property without having to compensate the applicants for the developments thereon; that he was duly registered as the lawful owner of the suit property by the county government; the respondent did not establish existence of customary trust as the suit property was owned by the county government; the respondent’s case was declared res judicata by Hon. Justice Meoli at Kiambu High Court; and, that if there was breach of any trust, the same ought to have been remedied by payment of damages and not the cancelation of his title. He urged that the respondent will not suffer any prejudice if his application is allowed. 4.The 2nd applicant filed a supplementary affidavit dated 9th November, 2022. He deponed that upon serving the instant application on the respondent, the respondent lodged an application before the ELC dated 18th October, 2022, seeking orders of eviction of the 2nd applicant’s tenants and also sought to close his business premises. He reiterated that his appeal will be rendered nugatory if the orders of stay sought are not granted. 5.The application was opposed by a replying affidavit sworn by the respondent on 5th December, 2022. According to the respondent, the applicants’ application was an abuse of the court process. The respondent deponed that the applicants had no arguable appeal, and that if the appeal is successful, the applicants can be compensated by an award of damages. He contended that he was entitled to enjoy the fruits of his judgment. He further swore that the applicants have made a similar application before the ELC in Murang’a ELC Case No. 36 of 2020, dated 4th July, 2022, which application was dismissed. 6.The application was canvassed through written submissions. On whether their appeal was arguable, the applicants stated that their memorandum of appeal raised arguable issues, and that the ELC wrongly applied the principles of customary trust in reaching its determination. On the nugatory aspect, the applicants submitted that their appeal, if successful, will be rendered nugatory, if the orders of stay are not granted. They urged that if the tenants are evicted and the developments on the suit property are destroyed, there is no guarantee that the respondent could compensate them in the event the appeal succeeds. 7.The respondent made submissions to the effect that the applicants had not satisfied the twin principles required for grant of orders craved for under Rule 5(2)(b) of the Rules of this Court. 8.We have considered the application, the grounds in support thereof, the replying and further affidavits, the submissions, the authorities cited and the law. The principles for granting an order for stay of execution, injunction or stay of proceedings under Rule 5(2)(b) of this Court’s Rules are well settled. This Court in the case of Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR delineated the jurisdiction of this Court in such an application as follows:“The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 9.On the first principle of whether the appeal is arguable, this Court in Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others (2013) eKLR observed that:“An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.” 10.From the foregoing, an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court, and one which is not frivolous. A single bona fide arguable ground of appeal is sufficient to satisfy this prerequisite. See R.F.S. v J.D.S. [2013] eKLR. 11.In the present application, the subject of the appeal is land. The 2nd applicant alleges that he purchased the suit property as a bona fide purchaser without proof of any defect in title. On the other hand, the respondent contends that the 2nd applicant has no right of title over the suit property as properly found by the ELC. 12.The 2nd applicant states that he has undertaken extensive developments on the suit property and would suffer irreparably if the order of injunction craved for is not granted. He points out that there are tenants in the suit premises who are running various businesses who will be negatively affected if the application is not granted. 13.The respondent as can be expected in the circumstances, is unimpressed by the assertions made by the applicants. He insists that the intended appeal will not meet the threshold muster and therefore diminishing the likelihood of its success. 14.We have perused the memorandum of appeal. We are satisfied that it raises arguable grounds of appeal one of which is whether the ELC correctly found that there existed a customary trust in regard to the respondent’s claim over the suit property. We therefore hold that the applicants established that the intended appeal is arguable and thus satisfied the first limb of the application. 15.With regard to the nugatory aspect, the 2nd applicant deponed that he holds the title to the suit property and has extensively developed the same. He is in possession. It is clear to us that this being a land dispute, status quo should be maintained pending the hearing and determination of the appeal. The applicants have established that they will suffer irreparably and their intended appeal will be rendered nugatory if the order of injunction craved for is not granted. The respondent will suffer no prejudice at the moment other than being kept out of the suit property pending the hearing and determination of the appeal. If the appeal is determined in the respondent’s favour, he will assume possession of the suit property. 16.In the premises therefore, the application has merit and is allowed.The respondent is restrained by an order of injunction from executing the judgment and decree of the ELC pending the hearing and determination of the appeal. 17.The costs of the application shall be in the appeal. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.W. KARANJA....................................JUDGE OF APPEALJAMILA MOHAMMED....................................JUDGE OF APPEALL. KIMARU.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar