https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1127

Riverbank Plaza Ltd v City Council of Nairobi (Civil Application E061 of 2026) [2026] KECA 1127 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1127 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E061 of 2026 W Karanja, A Ali-Aroni & LM Njuguna, JJA June 12, 2026 Between Riverbank Plaza Limited Applicant and City Council of Nairobi Respondent (Being an application for orders of injunction and stay of execution of the judgment of the Environment and Land Court at Nairobi (Kemei, J.) dated 5th February 2026inELC Case No. 1958 of 2007) Ruling 1.Before us is a notice of motion dated 10th February 2026, filed pursuant to rule 5 (2) (b) of this Court’s Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The applicant seeks a stay of execution of the decree made in ELC No. 1958 of 2007 on 5th February 2026, pending the hearing and determination of this application and the intended appeal. 2.Before the trial court, the applicant asserted that it is the lawful and registered owner of land parcel LR 3734/843 (“suit property”),having acquired it from the respondent through a transfer registered on 8th March 1993. The applicant’s director averred that the suit property was identified for commercial development in 1991, and the Nairobi Plot Allocation Committee approved an application for allocation. The respondent refuted this position, asserting that the applicant’s title was obtained through fraud, illegality, and breach of trust. The respondent further maintained that the suit property is public land granted to it by the President of Kenya in 1972 to hold in trust, specifically for the establishment of a public library. 3.Upon hearing the parties, the trial court, J. G Kemei, J, found that the suit property was never available for alienation as it was held in a fiduciary capacity for public purpose. Consequently, the registration of the title in respect of LR No. 3734/843 in the name of the applicant was declared illegal, null, and void, and the court ordered its immediate cancellation and return to the respondent. 4.Aggrieved by the judgment and decree, the applicant filed the instant application. In the grounds in support of the motion, and the supporting affidavit of Simon Ndungu, the director of the applicant, states that unless the orders prayed for are granted, the respondent may execute the decree as a consequence of which, the applicant will lose its property and the appeal will be rendered nugatory; that its appeal has high chances of success; that the respondent will not be prejudiced if the judgment is stayed, and it is in the interests of justice that the application be granted. 5.During the inter partes hearing of the application on 27th April 2026, both counsel briefly highlighted their written submissions. On the arguability of the intended appeal, Mr. Muriithi contended that the applicant intends to challenge the revocation of the title and placed reliance on the grounds of appeal. On the nugatory aspect, counsel contended that the appeal would be rendered nugatory without a stay of execution, as the title of the suit property will stand cancelled. The applicant cited the case of Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, and averred that the application has met the threshold for the grant of orders of stay of execution. 6.Counsel for the respondent submitted that the appeal is not arguable because it fails to identify any evidence that would fault the trial court’s findings. The respondent cited the cases of James v Kenya Commercial Bank Limited and Anor [2022] KECA 573 (KLR) and Nduati & 2 Others v Malenya & Anor [2024] KECA 182 (KLR) in support of this submission. On the nugatory aspect, counsel submitted that the appeal will not be rendered nugatory if a stay of execution is denied, as there is a recourse available in rectification of the land register under section 79 of the Land Registration Act, should the applicant eventually succeed on appeal. In this regard, the respondent cited the case of Ndambuki & Anor (suing as the administrators of the late Gregory Ndambuki) v National Land Commission & 2 Others [2024] KECA 534 (KLR). 7.We have considered the notice of motion and all the material before us. This being a rule 5(2)(b) application, it turns on consideration of the issues set out by this Court in the case of Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others (supra), being firstly, an applicant has to satisfy the court that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but suffice to state that it is an appeal that is not frivolous. 8.An arguable appeal is simply one that raises a bona fide arguable point that deserves to be considered and determined by the Court. In other words, an arguable appeal is not frivolous. 9.As was held by this Court in National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR:“It is to be remembered that in an application such as this, the grounds are not to be argued; all an applicant is required to do is to point out to the Court the ground or grounds which he believes are arguable and leave it to the Court to decide on the issue of whether or not the matters raised are arguable. 10.Secondly, an applicant has to demonstrate that, unless an order of stay of execution is granted, the appeal or intended appeal would be rendered nugatory. 11.The applicant in its memorandum of appeal complains that in dismissing its claim, the learned Judge erred: by holding that the registration of the title in the name of the applicant was illegal, null and void; that the suit property is public land, and that the applicant did not obtain any rights or interests in the land that are enforceable; and by cancelling and revoking the appellant’s title in respect to the suit property. Since an arguable appeal is not one that will necessarily succeed, we are prepared to find that the grounds of appeal raised are arguable. 12.On the nugatory aspect, the applicant averred that the title to the suit property will be adversely affected. Determining whether an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible, and if it is not, whether damages will reasonably compensate the aggrieved party. In this case, any damage that may arise from the judgment is reversible by Order of Court under section 80 of the Land Registration Act, which provides for rectification of the register. Further, an order for compensation by way of damages is also available to the applicant in the event the appeal is successful. 13.In the end, we find that the applicant has failed to meet the threshold for the second limb, and therefore, has failed to establish the twin principles for consideration in an application under rule 5(2) (b) of this Court’s Rules for the grant of an order of stay of execution. Accordingly, the applicant’s Motion is hereby dismissed with costs being in the appeal. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KARANJA................................JUDGE OF APPEALALI-ARONI................................JUDGE OF APPEALL. NJUGUNA................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR