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Court of AppealPartially AllowedCivil Application E246 of 2021· [2022] KECA 421 (KLR)

GJO v RSA

Court of Appeal

4 March 2022

DMD K Musinga WKW Karanja AMA K Murgor

1,457 words in judgment

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The bottom line

Kenya's Court of Appeal paused a matrimonial property judgment, but only on condition the husband keeps depositing rent he collects from the disputed property.

What this practically means

Executive summary

This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (D K Musinga, W Karanja and A K Murgor, JJA) on a Notice of Motion dated 8th July 2021 brought by GJO under Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of the judgment of M. Thande, J delivered on 11th June 2021 in Nairobi Family Division Matrimonial Cause No. 62 of 2019. The High Court had declared the Komarock property matrimonial property, awarded the applicant a 25% share and the respondent 75%, ordered its sale, directed the applicant to account for rent collected, and declared the Lukenya and Rongai properties to belong wholly to the respondent. The applicant filed an intended appeal and sought stay, arguing the appeal was arguable and that execution would evict him and the children from their home and render him destitute. The respondent opposed, with counsel clarifying that the children referred to were from another relationship. Applying the settled twin test - an arguable appeal and the nugatory aspect - the Court found the appeal arguable since the mode and proportions of matrimonial property distribution were not idle questions. On the nugatory limb, though doubtful the respondent could dispose of the properties, the Court held the property should be preserved, but balanced the applicant's long unaccounted enjoyment of rent by granting a conditional stay: preservation of the status quo on condition that the applicant deposits all rent received from the Komarock property with the respondent's counsel, held in trust for the respondent and her children, with automatic vacation on default of any month's payment. Costs of the application were made costs in the appeal. The decision below was not disturbed; the application for stay was allowed on conditions.

Key legal issues

Whether the intended appeal is arguable

Holding

The appeal was held arguable because the mode and proportions of distribution of matrimonial property raise substantive questions

Reasoning

The Court applied the settled Rule 5(2)(b) threshold, citing Dennis Mogambi Mang'are, that an arguable appeal need not be one that will succeed but only one deserving of the Court's consideration. The dispute over the mode and proportions of distribution of the matrimonial property was held not to be an idle question, satisfying the first limb.

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Whether the appeal would be rendered nugatory absent stay

Holding

A conditional stay was granted in the interest of justice, preserving the status quo with the applicant required to deposit rent received from the Komarock property

Reasoning

Although it was doubtful the respondent could dispose of the properties, the Court held the property should be preserved in the interest of justice. However, the applicant had long received and utilised rent without accounting, so an unconditional stay would perpetuate his unjust advantage. The Court balanced the scales by granting a conditional stay with an automatic vacation clause on default.

p. 3

Legal principles established

An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it will be rendered nugatory if the orders sought are not granted
An arguable appeal is not one that must succeed, but one deserving of the Court's consideration
In stay applications the Court has a sacrosanct responsibility to balance both sides of the scales

Court orders

1.The status quo pertaining as at the date of the ruling be preserved pending the hearing and determination of the appeal, on condition that the applicant deposits all rent he receives from NAIROBI/xxx/xxx/KOMAROCK ESTATE from the date of the ruling with counsel for the respondent, to be held in trust for the respondent and her children until the appeal is heard and determined
2.In default of payment of the said rent for any one month, the orders automatically stand vacated and the respondent will be at liberty to execute the judgment appealed from
3.Costs of the application be in the appeal

On appeal from: High Court; Matrimonial Cause No. 62 of 2019 (Nairobi Family Division)
Jurisdiction invoked: Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "GJO v RSA", Case Analysis (2022). Civil Application E246 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/421/eng@2022-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.