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Court of AppealDismissedNot stated in the judgment

Kamande v Khisa (Civil Application E470 of 2025) [2026] KECA 963 (KLR)

Court of Appeal of Kenya
15 May 2026
SKS. Gatembu KairuPNP. NyamweyaAMA. O. Muchelule
798 words in judgment
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The bottom line

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The Court of Appeal refused to pause a High Court ruling on a Nairobi matrimonial home because the appellant couldn't show the appeal would become pointless without a stay.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Gatembu Kairu, Nyamweya and Muchelule, JJ.A) dismissed an application for stay of execution of a ruling of the High Court at Nairobi (H. K. Chemitei, J.) delivered on 17th July 2025 in matrimonial property proceedings between a formerly married couple. The High Court had directed that the current market monthly rent of Maisonette No. 7, Hillside Court, Upperhill, Nairobi be assessed by an estate agent, that the applicant pay the respondent half the assessed monthly rent from 5th August 2025 pending determination of the suit, or, in the alternative, that she vacate the premises and the respondent pay her half rent, and that she grant the respondent access within three days to collect his personal belongings. The applicant filed a Notice of Appeal and moved the Court of Appeal by Notice of Motion dated 31st July 2025 seeking stay of execution pending appeal. She argued that the Judge, despite consolidating the parties' rival applications, dealt only with the respondent's application and failed to address hers, condemning her unheard, and that the respondent's application was not anchored on the substantive suit. Applying the established twin tests for stay pending appeal - arguability and nugatory - the Court found the appeal arguable but held that the nugatory test failed: the ruling balanced the parties' positions by giving either the option to occupy the property and pay half market rent, and no disposal of the property was claimed. The application was dismissed with costs in the appeal. This single-judgment decision binds subordinate courts on the twin-test framework for stay applications.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The appeal is arguable because the applicant contended that the learned Judge failed, despite the two applications having been consolidated, to deal with her application, condemning her unheard, and erred in entertaining the respondent's application not anchored on the substantive suit.

Reasoning

The Court examined the memorandum of appeal and the grounds raised, including the allegation that the Judge dealt only with the respondent's application despite consolidation of the two applications, and that the respondent's application was not anchored on the substantive suit. Finding these contentions not frivolous, the Court was satisfied that the appeal was arguable for purposes of the stay test.

p. 2
02

Whether the appeal will be rendered nugatory if stay is not granted

Holding

The appeal will not be rendered nugatory because the impugned ruling balances the interests of both parties, giving each the option to vacate and collect half market rent from the other, and it is not claimed that the property will be disposed of.

Reasoning

The Court noted that both parties claim the property and that the learned Judge had endeavoured to balance the scales by permitting either party to occupy the property on payment of half market rent to the other pending determination of the suit. Since the applicant had the option to vacate and collect rent, and no risk of disposal of the property was claimed, the nugatory test was not met and the application failed.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal under the Court's Rule 5(2)(b) jurisdiction must demonstrate that the appeal is arguable and that the appeal will be rendered nugatory if stay is not granted

Court orders

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  1. 1.The application dated 31st July 2025 is dismissed
  2. 2.The costs of the application shall be in the appeal
On appeal from
High Court of Kenya at Nairobi
Not stated in the judgment
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (implied by the nature of the application for stay pending appeal; not expressly cited in the judgment)

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, "Kamande v Khisa (Civil Application E470 of 2025) [2026] KECA 963 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/963/eng@2026-05-15

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