Gathenya & 3 others v Kimani & 2 others (Civil Appeal (Application) E142 of 2024) [2026] KECA 736 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a family inheritance case, ruling the applicants had not shown an arguable appeal and could still raise their objections in the High Court.
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 applicants' appeal is arguable
- 2.Whether, absent stay of proceedings, the appeal would be rendered nugatory
Key legal issues
#Whether the applicants demonstrated an arguable appeal under Rule 5(2)(b)
The applicants did not demonstrate a bona fide arguable appeal. The validity of the deceased's Will was conclusively settled in an unchallenged ruling of Mwongo, J. dated 17th November 2022, and the applicants' grievances remain live before the trial court, where they may file a protest or objection at the confirmation stage.
Although the arguability threshold is low, the Court held that the applicants' claims were conclusively dealt with in the unappealed ruling of Mwongo, J., which attained finality under the doctrines of finality and res judicata. The judge below had also directed that ascertainment of the deceased's properties would be determined at trial with viva voce evidence, and that the applicants would be at liberty to lodge a protest or objection when the executor applied for confirmation of the grant. Their grievances were therefore live issues before the trial court, and failing the first twin principle, the nugatory limb need not be addressed.
The nature of the Court's Rule 5(2)(b) jurisdiction to stay proceedings
The Court has original, wide and unfettered discretion under Rule 5(2)(b) to grant interim reliefs including stay of proceedings, but the discretion must be exercised judicially, and stay of proceedings is a rare remedy granted only in exceptional circumstances.
The Court characterised its Rule 5(2)(b) jurisdiction as a procedural safeguard to preserve the subject matter of an appeal and prevent the judicial process from becoming a nullity. It reaffirmed the twin principles from its own precedents (arguability and nugatory aspect), stressed that the discretion is fettered only by the requirement that it be exercised judicially and not capriciously, and added that stay of proceedings specifically is granted with circumspection only in exceptional circumstances.
Legal principles established
#- To invoke the Court's Rule 5(2)(b) jurisdiction, an applicant must satisfy both twin principles: the appeal is arguable and, absent stay, the appeal will be rendered nugatory; the discretion must be exercised judicially, not capriciously.
- Stay of proceedings is a rare remedy granted only in exceptional circumstances.
- On a Rule 5(2)(b) application the Court cannot make conclusive or definitive findings of fact or law; that is the function of the Court hearing the appeal.
- A court decision not challenged through appeal or review within the prescribed limitation period attains finality, under the doctrine of finality and res judicata.
Court orders
#- 1.Dismissal of the applicants' application dated 14th November 2025
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Naivasha
- Naivasha High Court Succession Cause No. 3 of 2017 (Consolidated with Naivasha High Court Succession Cause No. 4 of 2017)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (original jurisdiction to grant stay of execution or stay of proceedings)
Relief refused
#Stay of further proceedings in Naivasha High Court Succession Cause No. 3 of 2017 (consolidated with No. 4 of 2017) pending determination of the appeal
The applicants failed to demonstrate a bona fide arguable appeal; their grievances remain live issues before the trial court, where they may file a protest or objection proceedings upon confirmation of the grant
Costs
The application is dismissed with costs to the respondents.
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 upshot of the foregoing is that the applicants’ application dated 14th November 2025 is devoid of merit and the same is hereby dismissed with costs to the respondents.
To successfully invoke this jurisdiction, an applicant must satisfy the two mandatory conditions, often referred to as the twin principles, namely, that the appeal is arguable and absent of stay, the appeal will be rendered nugatory.
In addition, stay of proceedings is a rare remedy granted with circumspection and only in exceptional circumstances.
It is basic law that a court decision that is not challenged through an appeal or review within the prescribed limitation period attains finality.
Issues in the judgment
#The judgment records the trial court dismissing 'the applicants’ application dated 11th June 2024' by a 'ruling dated 17th May 2024', and elsewhere the supporting affidavit is dated '11th June 2025'; the internal dates appear inconsistent, and paragraph 9 contains a truncated quotation with the case name partially cut off ('Tony Ketter and 5 Others [2013] eKLR').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathenya & 3 others v Kimani & 2 others (Civil Appeal (Application) E142 of 2024) [2026] KECA 736 (KLR)", Case Analysis (2026). Nakuru COACA No. E142 of 2024 (application dated 14th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/736/eng@2026-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.