Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment as provided· [2026] KECA 1591 (KLR)

Maria Szabanowicz Mariano v Morsel Hijrat (sued As The Administrator of The Estate of Anthony Timothy Mariano - Deceased) & 3 others

Court of Appeal of Kenya
31 July 2026
1,253 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
This is a single interlocutory ruling of the Court of Appeal, Nairobi (W. Karanja, Ali-Aroni and L. Njuguna, JJA) on a notice of motion dated 30th October 2025 brought under rules 5, 43, 44 and 49 of the Court's Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The applicant, who lost a suit before the Environment and Land Court (Angote, J) claiming a spousal and trust interest in Flat No.10, Maruti Apartments, sought an injunction restraining her eviction pending her intended appeal. The trial court had dismissed her suit, finding irregularities on the face of her marriage certificate and only a nominal financial contribution (Kshs 33,750.00 against a purchase price of Kshs 413,500,000.00). The respondents neither filed replies nor appeared at the hearing. Applying the settled two-limb test - arguability and nugatory aspect - the Court found the intended appeal arguable because the validity of the marriage and the extent of the applicant's contribution required interrogation, and found the appeal would be rendered nugatory if the applicant were evicted, given the respondents' alleged steps to dispose of the property and their non-citizen status. The Court granted the interlocutory injunction pending appeal as prayed in prayer 3 of the motion, with costs to abide the outcome of the appeal. The underlying appeal remains to be heard; no findings were made on the merits.

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

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.

Reasoning

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.

p. 3
02

Whether the appeal would be rendered nugatory absent an injunction

Holding

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.

Reasoning

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.

p. 3

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. 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. 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.