PMK v CKM [2020] KECA 304 (KLR)
The bottom line
#The Court of Appeal refused to pause a High Court ruling that froze disputed properties as matrimonial property, because freezing them already protects both sides' interests.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
Yes; the dispute over whether the subject properties were matrimonial property raised an arguable issue, since a single arguable point suffices
The applicant complained that the learned judge erred in treating properties as matrimonial property despite the parties not being divorced and the properties not being part of the matrimonial cause proceedings. The Court found that this dispute — whether the properties were matrimonial property — was a genuine arguable issue, satisfying the first limb of the rule 5(2)(b) test because even one arguable point is enough.
Whether the intended appeal would be rendered nugatory if stay was not granted
No; the High Court order merely prohibited dealings with the properties pending apportionment, leaving both parties' interests protected, so the second limb failed
The High Court had only declared the properties matrimonial property and prohibited alienation, disposal, sale, charging or interference pending apportionment by consent or court order. Since neither party could deal with the properties, they would remain within the reach of both parties and the Court, so a successful appeal would not be rendered nugatory. The applicant therefore failed the second limb and the motion was dismissed with costs abiding the appeal.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two principles: the appeal or intended appeal must be arguable (not frivolous), and it must be shown that the appeal would be rendered nugatory if stay is not granted.
- In determining an application under rule 5(2)(b), the Court exercises a distinct jurisdiction which does not constitute an appeal from the trial judge's discretion.
- For an intended appeal to be arguable, a single arguable point suffices.
Court orders
#- 1.The notice of motion dated 16th January 2020 is dismissed
- 2.The costs of the application shall abide by the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- HC Matrimonial Cause No. 68 of 2015 (OS)
- Jurisdiction invoked
- Section 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "PMK v CKM [2020] KECA 304 (KLR)", Case Analysis (2020). Civil Application No. NAI. 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/304/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.