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Court of AppealDismissedNot stated in the judgment

TGEM v KSM (Civil Application E164 of 2025) [2026] KECA 247 (KLR)

Court of Appeal of Kenya
13 February 2026
SKS. GATEMBU KAIRUJMJAMILA MOHAMMEDWKW. KORIR
1,584 words in judgment
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The bottom line

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The Court of Appeal refused to block the sale of a Kajiado property pending appeal because money could adequately compensate if the appeal succeeded.

What this practically means

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Executive summary

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The applicant, TGEM, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of a High Court judgment delivered on 13th February 2025 by EK Ogola, J. The High Court had ordered that the suit property, Title No. Kajiado/Kitengela/xxx, be valued, sold and the proceeds shared 65:35 in the applicant's favour, compliance to occur within ninety days. The applicant argued the property was acquired before the 1997 marriage without the respondent's contribution and that the sale would render the intended appeal nugatory, since the property was the substratum of the appeal and he had lived on it for forty-one years. The respondent, KSM, opposed, asserting direct and indirect contributions to the matrimonial property and reliance on her constitutional right to property after nine years of litigation. Applying the settled twin principles from Trust Bank v Investech and Stanley Kang'ethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable on the timing-of-acquisition ground. However, it held the nugatory limb failed: the judgment awarded the respondent a quantifiable 35% share with a buy-out option, the property's value was ascertainable, and monetary compensation would adequately remedy the applicant should the appeal succeed. As both limbs must be satisfied, the motion was dismissed with costs to the respondent on 13th February 2026.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable because it raised at least one bona fide ground - whether all assets were acquired before the solemnization of the marriage.

Reasoning

The court applied the settled test that an arguable appeal is not one that must succeed but one that ought to be argued fully. The claim that the suit property was registered in the applicant's name in 1994 before the 1997 marriage raised a bona fide arguable point, but the court refrained from definitive findings to avoid embarrassing the bench hearing the main appeal.

p. 3
02

Nugatory-ness of the intended appeal

Holding

The appeal would not be rendered nugatory because the impugned judgment awarded a quantifiable share of the suit property, making monetary compensation an adequate remedy.

Reasoning

The judgment awarded the respondent 35% of the suit property with a buy-out option; the property's value was ascertainable. Since execution would not cause irreversible loss and damages would adequately compensate the applicant, the second limb of Rule 5(2)(b) failed. As both limbs must be satisfied, the application was dismissed.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs to obtain relief.
  • Nugatory-ness turns on whether what is to be stayed is irreversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and deserving of full argument.

Court orders

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  1. 1.The Notice of Motion dated 14th March 2025 is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "TGEM v KSM (Civil Application E164 of 2025) [2026] KECA 247 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/247/eng@2026-02-13

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