Maria Szabanowicz Mariano v Morsel Hijrat (sued As The Administrator of The Estate of Anthony Timothy Mariano - Deceased) & 3 others
The bottom line
#Kenya's Court of Appeal stopped an eviction of a woman claiming spousal rights to a Nairobi flat until her appeal can be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable: the validity of the applicant's marriage and her financial contribution to the suit property were issues requiring interrogation at the hearing of the appeal.
The Court applied the Kangethe threshold that an arguable appeal need not succeed but must not be frivolous. The applicant raised questions about the trial court's treatment of the marriage certificate (extract from register versus certificate) and her financial contribution. A single bona fide ground suffices. The Court found these issues sufficient to show the appeal was not frivolous, without opining on their merits.
Whether the appeal would be rendered nugatory absent an injunction
Yes. If the applicant were evicted and the property dealt with by non-citizen respondents who might leave the jurisdiction, the substratum of the appeal would be lost.
The applicant's uncontroverted averments showed the respondents were taking active steps to evict her and possibly sell, transfer, lease or charge the property. Because the 1st, 2nd and 3rd respondents are not Kenyan citizens and might leave the jurisdiction, enforcement of any judgment would be impracticable. Eviction before the hearing of the appeal would defeat the appeal's substratum even if it succeeded.
Legal principles established
#- On an application for injunction pending appeal, the Court does not determine the merits of the intended appeal; it only asks whether the appeal is arguable and whether it would be rendered nugatory if it succeeds.
- An appeal is arguable if a single bona fide ground of appeal is raised; it need not necessarily succeed, only be non-frivolous.
- The nugatory question turns 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.Granted the order of interlocutory injunction pending appeal as prayed in prayer 3 of the applicant's notice of motion dated 30th October 2025, restraining the respondents from evicting the applicant from Flat No.10, LR No. 1870/V/241; I.R 75309, Maruti Apartments
- 2.Ordered that costs shall abide the outcome of the appeal
- On appeal from
- Environment and Land Court
- Not stated
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5, 43, 44 and 49 of this Court's Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maria Szabanowicz Mariano v Morsel Hijrat (sued As The Administrator of The Estate of Anthony Timothy Mariano - Deceased) & 3 others", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1591/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.