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Court of AppealAllowedCivil Application No. Nai E127 of 2024 (Notice of Motion dated 20th May, 2024)

Wambui & another v Kahungu (Civil Application E249 of 2024) [2025] KECA 159 (KLR)

Court of Appeal
7 February 2025
FTF. TuiyottPNP. NyamweyaFOF. A. Ochieng
2,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped the subdivision of family land in a 40-year succession dispute, protecting graves on the property until a planned appeal is heard.

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 (Tuiyott, Nyamweya and Ochieng, JJA) on a Notice of Motion dated 20th May, 2024 brought under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a High Court ruling. The dispute concerns distribution of the estate of Kimanu Kahungu, pending since a Succession Cause filed in 1984. By a ruling of Thande, J, the respondent, Polly Nyambura Kahungu, was found entitled to the equivalent of half of Plot Dagoretti/Uthiru/504, to be taken from Plot Dagoretti/Uthiru/1053, with a government surveyor to subdivide that plot while keeping the parties on their current portions and not interfering with permanent buildings and graves. A government surveyor produced two sketch plans and recommended annexure B, which Chemitei, J adopted by ruling dated 11th April, 2024. The applicants, Joan Annita Wambui and Patricia Nyambura Njoronge, intended to appeal, contending that the adopted plan contravened Thande J's ruling, would evict them, discriminated against them as to houses, disregarded graves, and gave the respondent 0.40 rather than 0.45 hectares. Applying the twin principles from Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found one arguable ground in whether the plan preserves the graves, and on the nugatory limb held it more prudent to preserve the status quo against possible irreversible changes. The motion was allowed; execution of Chemitei J's ruling was stayed pending the intended appeal, to be filed within 60 days and accorded priority hearing. Costs of the application abide the outcome of the appeal. The Court also commended alternative justice mechanisms as a lasting resolution between the family members.

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, unless stay of execution of the ruling of Chemitei, J is granted, the intended appeal will be rendered nugatory
  3. 3.Whether the applicants satisfy both twin principles for relief under Rule 5(2)(b)

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found an arguable appeal in the question whether the surveyor's plan adopted by Chemitei, J preserves the graves on the land and complies with the ruling of Thande, J.

Reasoning

The applicants' uncontroverted averment was that the plan gives the respondent the portion containing family graves, contrary to the ruling of Thande, J which required non-interference with graves. The Court held that whether the plan balances non-interference with graves against preservation of the land's value is a matter worthy of full consideration by the appeal court, and declined to make final findings at the stay stage.

p. 4
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The Court held that irreversible changes to the land could undermine the appeal, and leaned towards granting stay.

Reasoning

Although the respondent swore she would not interfere with the graves, the Court found it impossible to predict how permanent developments on the proposed subdivisions would affect the graves. It considered it more prudent to preserve the status quo until the appeal is determined than to risk irreversible changes.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; a single bona fide arguable ground suffices.
  • The purpose of a stay under Rule 5(2)(b) is preservation of the subject matter of the appeal so the appeal is not rendered nugatory.

Court orders

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  1. 1.Notice of Motion dated May 20, 2024 allowed
  2. 2.Further execution of the ruling and order of Honourable Justice Chemitei Hilary Kiplagat delivered on April 11, 2024 in Succession Cause No. 384 of 1984 stayed pending the hearing and determination of the intended appeal
  3. 3.Applicants to file the intended appeal within 60 days, without breaching the timelines set out in the Court of Appeal Rules, after which the appeal will be accorded priority hearing
  4. 4.Costs of the application shall abide the outcome of the intended appeal

The bench

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

FT
majority
PN
majority
FO
majority
On appeal from
High Court at Nairobi
Succession Cause No. 384 of 1984
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

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.

Ultimately, we allow the Notice of Motion dated May 20, 2024 with the result that the further execution of the ruling and order of Honourable Justice Chemitei Hilary Kiplagat delivered on April 11, 2024 in Succession Cause No. 384 of 1984 is hereby stayed pending the hearing and determination of the intended appeal against the said ruling.
p. 4Final orders - stay granted
We make further orders that the applicants shall, without breaching the timelines set out in the Court of Appeal Rules, file the intended Appeal within 60 days hereof, when after the appeal will be accorded priority hearing. Costs of the application shall abide the outcome of the intended appeal.
p. 4Final orders - filing timeline and costs
The objective of the power granted to this Court by Rule 5(2)(b) of the Court of Appeal Rules to stay execution is to preserve the subject matter of an appeal, when not to do so may render the outcome of the appeal nugatory, worthless or simply a paper victory.
p. 3Purpose of stay under Rule 5(2)(b)

Issues in the judgment

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minor

The date of the ruling of Thande, J is inconsistently stated as both 2024 and 2021 within the judgment.

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, "Wambui & another v Kahungu (Civil Application E249 of 2024) [2025] KECA 159 (KLR)", Case Analysis (2025). Civil Application No. Nai E127 of 2024 (Notice of Motion dated 20th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/159/eng@2025-02-07

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