Riwigi & another v Mati & 10 others (Civil Appeal (Application) E215 of 2023) [2026] KECA 353 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court succession ruling because the applicants showed no loss that money couldn't fix.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable under the first limb of Rule 5(2)(b)
- 2.Whether the appeal, if successful, would be rendered nugatory unless stay of execution, maintenance of status quo and stay of proceedings are granted (second limb of Rule 5(2)(b))
Key legal issues
#Arguability of the intended appeal
The appeal is arguable on the ground that the High Court may have usurped the jurisdiction of the Environment and Land Court in determining that the 2nd applicant was not a bona fide purchaser for value without notice.
The court applied the settled test that only a single bona fide arguable ground suffices. It found the jurisdictional ground concerning the ELC's exclusive mandate over title and bona fide purchaser questions sufficient, without making definitive findings lest it embarrass the bench seized of the main appeal.
Whether the appeal would be rendered nugatory without the orders sought
The applicants failed the nugatory limb because they demonstrated no irreparable loss; damages would adequately compensate them.
The court held that in weighing nugatory-ness it must consider the conflicting claims of both parties on their merits. The applicants' contention that the ruling disinherited them was unsupported by material showing irreparable loss, and since the 2nd applicant's title was tied to the 1st applicant's, neither would suffer loss not compensable by damages. Failure of this limb was fatal to the application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; failure on either limb is fatal.
- An arguable appeal need not be one that must succeed; it is one that is not frivolous and deserves full argument, and the court must not make definitive findings of fact or law at the interlocutory stage.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The application dated 20th December 2023 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the ruling delivered on 7th November 2023 and maintenance of status quo pending the hearing and determination of the application and the appeal
The applicants failed to establish the nugatory limb; damages would be an adequate remedy
Stay of proceedings in the High Court pending the hearing and determination of the application and the appeal
The applicants failed to meet the two-limb threshold under Rule 5(2)(b)
Costs
The application is dismissed with no order as to costs.
Quotable passages
#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.
In the circumstances, the application dated 20th December 2023 has no merit and is dismissed with no order as to costs.
We find no material demonstrating irreparable loss as damages would serve as adequate compensation in the circumstances.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Riwigi & another v Mati & 10 others (Civil Appeal (Application) E215 of 2023) [2026] KECA 353 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/353/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.