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Court of AppealDismissedCivil Application (as per notice of motion dated 12th July 2024, intended appeal from Kiambu Succession Cause No. 7 of 2018)

Kaguara & another v Uiru & 5 others (Civil Application E362 of 2024) [2025] KECA 69 (KLR)

Court of Appeal of Kenya
24 January 2025
2,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to freeze an estate distribution because the applicants' structures were built in defiance of existing court orders.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nyamweya, Korir and Odunga, JJ.A) delivered on 24th January 2025 on a notice of motion dated 12th July 2024 brought under rule 5(2)(b) of the Court of Appeal Rules. The applicants sought a stay of execution of a ruling by Mshila, J. delivered on 24th May 2024 in Kiambu Succession Cause No. 7 of 2018, in which the trial court adopted survey 'Plan B' for the distribution of the estate property Kiambaa/Ruaka/113 in the estate of Naftary Uiru Kaguara. The applicants, who claimed to have occupied and developed plots 1 to 5 over the years, argued that their appeal was arguable and would be rendered nugatory if the structures they erected were demolished. The respondents, the estate administrators and other beneficiaries, countered that the appeal was not arguable and that the structures were built by third parties in breach of court orders preserving the estate property. Applying the settled twin test under rule 5(2)(b), the Court found the intended appeal arguable - a single arguable point sufficing - but held that the nugatory limb failed. Relying on a prior ruling by Kasango, J., the Court found the claimed developments were erected in disregard of court orders and amounted to possible intermeddling with the estate, which stay orders cannot protect; nor was any disposal of the estate property alleged. The Court declined to shift the onus of proving ability to compensate to the respondents, as that claim was not pleaded and no monetary award existed. The application was dismissed with costs to the respondents, costs following the event notwithstanding that this was a family matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the intended appeal arguable on the basis of the nine issues raised in the draft memorandum of appeal read against the impugned ruling.

Reasoning

The Court perused the draft memorandum of appeal, which raised nine issues, and compared it with the annexed impugned ruling. Applying the Wasike principle that an applicant need only identify arguable grounds without arguing them, and that a single arguable point suffices, the Court concluded the appeal was arguable but declined to say more to avoid embarrassing the bench that will hear the appeal.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The nugatory test was not satisfied: the applicants' claimed prejudice arose from structures built in disregard of court orders and amounted to possible intermeddling with the estate, and no disposal of the estate property was shown.

Reasoning

The Court relied on a prior ruling by Kasango, J. holding that the 1st applicant's husband had no transferable interest in the deceased's property and noting orders barring further construction. The structures the applicants feared losing were thus erected in contravention of court orders and cannot attract the Court's equitable protection. Further, the applicants never alleged the respondents intended to dispose of the estate property, and no monetary award was contained in the impugned ruling.

p. 4
03

Whether the respondents should bear the onus of demonstrating ability to compensate

Holding

The Court refused to shift the onus to the respondents on a claim (inability to pay a decretal sum) not raised in the pleadings, and noted there was no monetary award in the ruling.

Reasoning

The applicants argued in submissions that the respondents could not compensate them. The Court held that since this allegation was not raised in the pleadings, the onus could not be shifted to the respondents to dislodge it; in any event, the impugned ruling contained no monetary award, rendering the submission academic.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that, absent stay, the appeal would be rendered nugatory.
  • On a rule 5(2)(b) application, grounds need not be argued; the applicant need only point out arguable grounds.
  • A single arguable point suffices to establish an arguable appeal.
  • Developments carried out in contravention of court orders, amounting to intermeddling with a deceased's estate, cannot be protected by stay orders.

Court orders

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  1. 1.The application dated 12th July 2024 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Kiambu
Succession Cause No. 7 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending intended appeal)

Relief refused

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Order of stay of execution of the ruling of Mshila, J. delivered on 24th May 2024

Although the intended appeal was found arguable, the applicants failed to demonstrate that the appeal would be rendered nugatory; the structures they claimed would be lost were, on the evidence, erected in disregard of court orders, and no disposal of the estate property was shown to be intended.

p. 4

Costs

The application was dismissed with costs to the respondents; costs follow the event.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the application dated 12th July 2024 is found to be without merit and is dismissed with costs to the respondents.
p. 5Final orders - dismissal of the rule 5(2)(b) application
As such, we award the costs of the application to the respondents.
p. 5Costs
In order to succeed, an applicant must demonstrate the existence of an arguable appeal, which, in the absence of the stay orders, is likely to be rendered nugatory.
p. 3Rule 5(2)(b) twin conditions
Those developments cannot be protected by stay orders and neither can it be said that the intended appeal will be rendered nugatory because activities carried out in clear contravention of court orders have not been protected.
p. 4No stay protection for constructions erected in breach of court orders

Issues in the judgment

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minor

The same Court of Appeal authority is cited twice in the judgment under different citations: 'National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike & Another [2006] eKLR' (by counsel) and 'National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike; Lantech Ltd [2006] KECA 333 (KLR)' (by the Court), which appear to be the same case.

minor

The names of the 2nd applicant and the 3rd, 4th, 5th and 6th respondents are not stated anywhere in the judgment, though the ruling under appeal is attributed to Kiambu Succession Cause No. 7 of 2018.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kaguara & another v Uiru & 5 others (Civil Application E362 of 2024) [2025] KECA 69 (KLR)", Case Analysis (2025). Civil Application (as per notice of motion dated 12th July 2024, intended appeal from Kiambu Succession Cause No. 7 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/69/eng@2025-01-24

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