Kaguara & another v Uiru & 5 others (Civil Application E362 of 2024) [2025] KECA 69 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if stay is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the appeal would be rendered nugatory absent stay
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.
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.
Whether the respondents should bear the onus of demonstrating ability to compensate
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.
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.
Legal principles established
#- 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
#- 1.The application dated 12th July 2024 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
Costs
The application was dismissed with costs to the respondents; costs follow the event.
Quotable passages
#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.
As such, we award the costs of the application to the respondents.
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.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.