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Court of AppealDismissedNot stated in the judgment (Notice of Motion dated 16th December 2024 in an intended appeal)· [2025] KECA 1829 (KLR)

Mary Nyambura Kang’ara Alias Mary Nyambura Paul v Paul Ogari Mayaka

Court of Appeal of Kenya
7 November 2025
1,504 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 pause High Court orders sharing rental income from a family property, because the intended appeal raised no worthwhile point.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, on a Notice of Motion dated 16th December 2024 by Mary Nyambura Kang'ara seeking stay of execution of a High Court ruling of 5th December 2024 pending an intended appeal. The underlying dispute concerns Plot No. 29 on L.R. No. Dagoretti/Riruta/168. The Supreme Court, in a judgment of 27th January 2023, held there was no presumption of marriage but that both parties had contributed to the property, awarding shares of 70% to the applicant and 30% to the respondent, without any order on rental income. The respondent then sought enforcement of the decree, and the High Court ordered sharing of rental income at 70:30, appointment of an estate agent in default, and joint access. The applicant argued before the Court of Appeal that the High Court, as an executing court under Section 34 of the Civil Procedure Act, lacked jurisdiction to introduce terms on rent and thereby modified the Supreme Court judgment. Applying the settled Rule 5(2)(b) test, the Court found the intended appeal not arguable, noting the undisputed beneficial interests of both parties and the applicant's long-standing exclusive enjoyment of rental income. On the nugatory limb, the Court held the rental income was a monetary benefit capable of refund, the subject matter would not be extinguished, and the property remains pending confirmation in the succession court. Both limbs failing, the application was dismissed with costs to the respondent. The ruling was delivered under Rule 34(4) following the passing of Judge Ochieng, JA.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was not arguable; the complaint that the High Court exceeded its jurisdiction in execution did not raise a bona fide point on the material before the Court.

Reasoning

The Court noted it was not disputed that the Supreme Court found both parties to have beneficial interests in the suit property, nor that the applicant had long enjoyed the rental income to the exclusion of the respondent. Without expressing more, lest it embarrass the bench seized of the main appeal, the Court was not persuaded the appeal was arguable.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The intended appeal would not be rendered nugatory because the subject of the stay is a monetary benefit, no inability to refund was shown, and the suit property remains pending confirmation in the succession court with title yet to issue.

Reasoning

The rental income was a monetary benefit capable of refund if the appeal succeeded. Compliance with the High Court orders would not irreparably affect or extinguish the subject matter. Counsel for the applicant conceded at the hearing that the suit property was pending confirmation in the succession court and title was yet to be issued.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that unless stay is granted the appeal would be rendered nugatory; both limbs must be satisfied.
  • An arguable appeal is not one that must ultimately succeed, but one that raises at least a bona fide point worthy of consideration and not frivolous.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 16th December 2024
  2. 2.Costs of the application awarded to the respondent
On appeal from
High Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010 (application for stay of execution pending appeal)

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, "Mary Nyambura Kang’ara Alias Mary Nyambura Paul v Paul Ogari Mayaka", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 16th December 2024 in an intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1829/eng@2025-11-07

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