Goerge Muchira Gathumbi v Monicah Njoki Gathumbi
The bottom line
#The Court of Appeal dismissed a brother's bid to stop his sister evicting him from family land because you cannot appeal or stay a ruling without first getting permission.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain an application under Rule 5(2)(b) where leave to appeal was not obtained
The application fails because no valid notice of appeal exists; leave was a prerequisite and was never sought or obtained.
Section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules prescribe the orders appealable as of right. The ruling the applicant sought to appeal was made under Order 42 Rule 6 and is not appealable as of right. Following Peter Nyaga Muvake v Joseph Mutunga, leave is a sine qua non to lodging a notice of appeal; without a valid notice of appeal the Court's jurisdiction is not invoked and the stay application is 'dead in the water'.
Whether a dismissal of an application for stay of execution can itself be stayed
No; such a dismissal is a negative order incapable of execution and therefore incapable of being stayed.
The Court, applying Western College of Arts and Applied Sciences v EP Oranga, noted that the High Court ruling merely dismissed the applicant's stay application with costs; it ordered no party to do, refrain from doing, or pay anything. There is nothing to execute and nothing capable of being stayed, save the issue of costs.
Nature of the Court's jurisdiction on Rule 5(2)(b) applications
The Court exercises original and discretionary jurisdiction, applying its mind de novo, not as an appeal from the trial judge's discretion.
Citing Montague Charles Ruben and Trust Bank Limited v Investech Bank, the Court reiterated that Rule 5(2)(b) jurisdiction is original and discretionary; the twin tests are an arguable (not frivolous) appeal and that the appeal, if successful, would be rendered nugatory absent stay, assessed against the facts of each case.
Legal principles established
#- An order that merely dismisses an application, directing no party to do or refrain from doing any act or to pay any sum, is a negative order incapable of execution and incapable of being stayed.
- An appeal against an order made under Order 42 Rule 6 of the Civil Procedure Rules lies only with leave; without leave there is no valid notice of appeal and the Court of Appeal has no jurisdiction over the appeal or an application for stay in the intended appeal.
Court orders
#- 1.The applicant's application dated 12th August, 2022 is dismissed with costs to the respondent
- On appeal from
- Environment and Land Court (High Court) at Kerugoya
- Ruling dated 22nd July, 2022 (Cherono J.)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Section 3 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Goerge Muchira Gathumbi v Monicah Njoki Gathumbi", Case Analysis (2026). Notice of motion dated 12th August, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/514/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.