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Court of AppealAllowedCivil Application (Rule 5(2)(b)) arising from Kisumu Civil Appeal No. E244 of 2024

Silas v Maloba & 2 others (Civil Appeal (Application) E244 of 2024) [2025] KECA 1912 (KLR)

Court of Appeal
7 November 2025
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal stopped changes to an inheritance land deal until an appeal decides who truly owns the two acres.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules seeking injunctive reliefs pending the hearing of Kisumu Civil Appeal No. E244 of 2024, filed against the ruling of P. J. Otieno, J. delivered on 5th July 2024 in Kakamega High Court Succession Cause No. 1237 of 2012. The dispute concerns the estate of James Maloba Ibanga, deceased. The 1st and 2nd respondents obtained a confirmed grant listing the applicant as a beneficiary of two acres of parcel Marama/Shikunga/965. The 3rd respondent then filed summons for revocation of the grant claiming to be a daughter of the deceased; without the applicant's involvement, the respondents compromised those summons, and the certificate was rectified to replace the applicant with the 3rd respondent. The applicant's application for further rectification was dismissed on the basis that it fell outside the probate court's mandate. Applying the settled twin test from Trust Bank v Investech Bank and Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the draft appeal arguable on the legality of the compromise, the disputed parentage of the 3rd respondent, and the fairness of the rectification. On the nugatory limb, it held that land rights and physical possession cannot be adequately remedied by damages, and that the applicant's possession, development of the land, threats of eviction and risk of third-party transfer created a risk of irreversible loss. The Court allowed the application and granted the injunctive reliefs pending the appeal, with costs to abide the outcome of the appeal. The judgment is a single ruling of the full bench of three Judges of Appeal.

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 in Kisumu Civil Appeal No. E244 of 2024 is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if the injunctive relief sought is not granted pending the appeal

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

The Court found the draft Memorandum of Appeal arguable, particularly on the propriety of the trial court's endorsement of a compromise excluding the applicant, the disputed parentage of the 3rd respondent, and the fairness of the rectification process.

Reasoning

The Court applied the settled test that only a single bona fide arguable ground is required, and an arguable ground need not ultimately succeed. It identified the legality of the compromise that removed the applicant from the Certificate of Confirmation of Grant, the disputed familial relationship between the 3rd respondent and the deceased, and the procedural fairness of the rectification as issues deserving full judicial consideration.

p. 3
02

Whether the intended appeal would be rendered nugatory absent injunctive relief

Holding

The second limb was satisfied because the applicant is in actual and exclusive possession of the suit land, has developed it, and faces eviction and third-party transfer that damages could not adequately remedy.

Reasoning

The Court held the inquiry is fact-specific and guided by the overriding objective of preventing a hollow victory. Land rights and physical possession, unlike a money decree, cannot be adequately compensated by damages. The applicant's cultivation, trees nearing maturity, threats of eviction and indications of disposal to third parties created a risk of irreversible loss that would defeat the substratum of the appeal.

p. 4

Legal principles established

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  • To succeed on an application under Rule 5(2)(b), an applicant must show that the appeal or intended appeal is arguable and that, if successful, it will be rendered nugatory unless a stay is granted; both limbs must be demonstrated.
  • An arguable appeal is not one that must necessarily succeed, but one that is not frivolous and deserves to be argued fully before the court.

Court orders

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  1. 1.The application dated 28th May 2025 is allowed
  2. 2.Injunctive reliefs sought are granted pending the hearing and determination of Kisumu Civil Appeal No. E244 of 2024
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kakamega
Kakamega High Court Succession Cause No. 1237 of 2012
Jurisdiction invoked
Sections 3A(1) and 3B of the Appellate Jurisdiction Act and Rules 1(2), 5(2)(b), 31 and 47 of the Court of Appeal Rules

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.

The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
p. 3Twin test for Rule 5(2)(b) relief
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
p. 3Definition of an arguable appeal
Unlike a money decree, the subject matter here involves land rights and physical possession, which, if disrupted, cannot be adequately remedied by an award of damages.
p. 4Nugatory limb - land possession not compensable in damages
The injunctive reliefs sought are hereby granted, pending the hearing and determination of Kisumu Civil Appeal No. E244 of 2024. Costs of the application shall abide the outcome of the appeal.
p. 4Final orders and costs

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, "Silas v Maloba & 2 others (Civil Appeal (Application) E244 of 2024) [2025] KECA 1912 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)) arising from Kisumu Civil Appeal No. E244 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1912/eng@2025-11-07

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