Mary Nyambura Kang’ara Alias Mary Nyambura Paul v Paul Ogari Mayaka
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the intended appeal would be rendered nugatory if stay is not granted
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Motion dated 16th December 2024
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.