https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1119

Ng’ang’a v Lagat (Sued as the Administrator of Estate of Christopher Kimaru Lagat) (Civil Appeal (Application) E032 of 2026) [2026] KECA 1119 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1119 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal (Application) E032 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA June 12, 2026 An application for injunction pending hearing and determination of an appeal from the ruling delivered on 10th February 2026 by the Environment and Land Court at Eldoret (Washe, J.) in ELC No E005/2024 (OS) Between Roda Jerotich Ng’ang’a Applicant and Priscah Chepchirchir Lagat (Sued as the Administrator of Estate of Christopher Kimaru Lagat) Respondent (An application for injunction pending hearing and determination of an appeal from the ruling delivered on 10th February 2026 by the Environment and Land Court at Eldoret (Washe, J.) in ELC No E005/2024 (OS)) Ruling 1.What falls for determination before us is the notice of motion dated 19th March 2026, by which the applicant seeks an order of interlocutory injunction, restraining the respondent and her agents, from evicting the applicant from the portion of land measuring 0.9 acres comprised in land parcel Moi’s Bridge Block 2 (Tuiyobei)/72 pending hearing and determination of the applicant’s appeal. 2.The motion is brought under order 40 rules 1, 4 & 10(1)(a), order 50 rules 1, 3 & 4 of the Civil Procedure Rules and sections 3 & 3A of the Civil Procedure Act. It is supported by the applicant’s own affidavit and is premised on the grounds that the applicant is at risk of being evicted from the suit land of which she claims to have been in occupation since the year 2002. 3.The applicant’s claim of adverse possession filed at the Environment and Land Court (ELC) was dismissed on 10th February 2026, on the ground that it was in violation of the principle of res judicata. 4.The application is opposed by a replying affidavit sworn by the respondent, Priscah Chepchirchir Lagat on 19th March 2026. 5.The respondent depones that the entire parcel of land known as Moi’s Bridge (Tuiyobei)/72 measuring approximately 4.1814 hectares is registered in the name of her late husband, having been so registered in October 1994. 6.The respondent further depones that the applicant, Roda Jerotich Ng’ang’a is the mother of one Sammy Kirwok Lagat who is said to have filed ELC Case No. 182 of 2018 (OS) against the respondent’s late husband, seeking similar orders of adverse possession over the suit land. 7.The respondent adds that prior to institution of ELC Case No. 182 of 2018 by Sammy Kirwok Lagat, her late husband had filed ELC Case No. 42 of 2017, seeking orders of eviction against the said Sammy Kirwok Lagat. 8.According to the respondent, Sammy Kirwok Lagat had, on 31st January 2017, forcefully entered a portion of the parcel of land known as Moi’s Bridge (tuiyobei)/72, prompting the respondent’s late husband to seek eviction orders. 9.By a judgment dated 20th March 2023, the ELC (Obaga. J.) determined ELC Case No. 42 of 2017 in favour of the respondent’s husband. The applicant’s son, Sammy Kiwork Lagat, filed a notice of appeal dated 21st March 2023. 10.The respondent avers that attempts to execute the eviction orders were met with violence orchestrated by Sammy Kirwok Lagat, causing the respondent’s husband to seek police assistance to fence off the disputed parcel of land. 11.Upon being served with this application, Sammy Kirwok Lagat filed his own application dated 11th December 2023, seeking stay of execution of the decree then in force. 12.The application lodged by the respondent’s late husband was allowed and the one filed by Sammy Kirwok Lagat was dismissed for the stated reason that it was an afterthought, having been triggered by the application seeking his eviction. 13.The respondent points out that the sale agreements relied upon by the applicant in the present application are the same ones produced by her son, Sammy Kirwok Lagat, in the determined cases. 14.In the respondent’s view, the Originating Summons before the ELC was filed with the sole aim of defeating eviction, after the application for stay of execution filed by the applicant’s son was dismissed. 15.The respondent further takes the view that the instant application is sub judice, in light of the pending appeal lodged by Sammy Kirwok Lagat. 16.Finally, the respondent depones that the present application has been overtaken by events as she has since taken possession of the suit land, which she has ploughed. She concludes that granting the orders sought by the applicant would be tantamount to evicting her and her family from the suit land. 17.The applicant swore a supplementary affidavit on 14th April 2026, admitting that Sammy Kirwok Lagat, the applicant in ELC Case No. 182 of 2017 (OS) is her son, but asserting that she had a distinct right to institute her own action, over the same portion of land. 18.The applicant therefore maintains that the doctrines of res judicata and sub judice are not applicable in her circumstances. She claims to be in occupation of the suit land. 19.When the application came up for hearing before us, learned counsel Mr. Kipnyekwei appeared for the applicant while learned counsel Ms. Isiaho was present for the respondent. The parties relied on their pleadings and written submissions. 20.Quite surprisingly, the applicant bases her plea on Giella v Cassman Brown [1973] EA 358, a leading authority on stay of execution under the Civil Procedure Rules, but totally inapplicable in stay applications before the Court of Appeal. 21.Applications for stay of execution in this Court are provided for under rule 5(2)(b) of the Court of Appeal Rules, which provides as follows:2.Subject to subrule (1), the institution of an appeal shall not operate to suspend any sentence or stay of execution, but the Court may-a.…b.in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or stay of any further proceedings on such terms as the Court may think just. 22.The conditions under which a rule 5(2)(b) application may be granted are two; first, that the applicant has an arguable appeal (the arguability test) and second, that the appeal will be rendered nugatory if the orders sought are not granted (the nugatory test). An applicant must satisfy the two limbs. 23.The jurisdictional beacons of the Court under rule 5(2)(b) were established in Trust Bank Limited & Another v Investech Bank Limited & 3 Others [2000] eKLR 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 the facts and circumstances of each case…” 24.As to what constitutes an arguable appeal, this Court in its decision in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR gave the following guidance:“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.” 25.The gravamen of the applicant’s appeal, which is yet to be determined, is that her claim before the ELC was distinct from that of her son, and the conclusion that she was barred by the principles of res judicata and sub judice was therefore misplaced. An arguable ground is not one that must necessarily succeed at the hearing, and we are satisfied that the grounds in the memorandum of appeal are arguable, but as to whether they will succeed, we leave it to the bench that will hear and determine the appeal. 26.With regard to the nugatory test, we revert to this Court’s decision in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra) where it was held that:“The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. 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.” 27.In affirming this position, the Court in Jambo East Africa Limited & Another v Harit Sheth Advocates & 6 Others [2022] KECA 480 (KLR) stated the following:“In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties, and each case to be considered on its merits.” 28.While the applicant claims to be in possession of the suit land, the respondent asserts that the applicant has already been evicted in compliance with the orders issued by the ELC.We are faced with two conflicting positions on what the status is on the ground. The applicant has made a bare statement that she is in possession. On the other hand, the respondent has elaborately stated how she took possession through eviction orders that were issued by the ELC. Balancing the two rival positions, we find the respondent’s position more satisfactory.Accordingly, the applicant has failed to satisfy the second limb of the twin principles. 29.In the circumstances, the application dated 19th March 2026 fails and is dismissed with costs to the respondent. 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.DEPUTY REGISTRAR.