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Court of AppealPartially AllowedCivil Application E347 of 2021

Kaburi & 2 others v Njuguna & 2 others

Court of Appeal
25 September 2026
3,134 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal froze the sale of a Naivasha farm pending an appeal, but the applicants must file that appeal within 45 days or the protection lapses.

What this practically means

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Executive summary

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The applicants, sons and substituted plaintiffs of the late Kaburi Njoroge, moved the Court of Appeal under rule 5(2)(b) seeking an injunction and an inhibition order over L.R. No. Naivasha/Mwichiringiri Block 1/32 pending an intended appeal against a High Court ruling of 26th October 2020 affirming that their suit had abated. The 1st respondent opposed, arguing the application required leave to appeal, that the orders sought to be stayed were negative orders incapable of stay, and that the applicants' equity of redemption had been extinguished at the 2010 auction, with transfer completed and title issued to her in July 2021. The Court noted divergent authority on whether a valid notice of appeal is required for rule 5(2)(b) jurisdiction and declined to determine the leave question, observing that requiring leave first could occasion injustice. Applying the settled twin principles, the Court found the intended appeal arguable on the ground that the trial court erred in declaring the suit abated despite a substitution order made within the prescribed period, and that the appeal would be rendered nugatory if the property changed hands. The Court granted the injunction and directed registration of an inhibition order pending the intended appeal, but declined to set aside the abatement orders as premature. The appeal was to be filed within 45 days, failing which the injunctive orders would lapse. Costs were made to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave to appeal was necessary before the application under rule 5(2)(b) could be entertained
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the intended appeal would be rendered nugatory if the orders sought are not granted

Key legal issues

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01

Whether the Court should determine the validity of the notice of appeal or the need for leave at the rule 5(2)(b) stage

Holding

The Court declined to determine the application on the basis of whether leave to appeal was necessary, noting the divergent views within the Court and the potential injustice of requiring leave before a rule 5(2)(b) application

Reasoning

The Court acknowledged divergent authority: one line (Mbugua v Waema, citing Equity Bank v West Link Mbo) requires a valid notice of appeal; another (National Industrial Credit Bank v Wasike; Peter Njuguna Njoroge) holds validity should not be determined at this stage, with remedies under the Rules available. The Court also noted that requiring leave first could occasion injustice where oral applications are opposed. It therefore sidestepped the competence objection entirely.

p. 5
02

Whether the intended appeal is arguable

Holding

The intended appeal, on the ground that the trial court erred in finding the suit had abated despite a substitution order made within the prescribed period, is arguable and merits consideration

Reasoning

The applicants contend the trial judge, without jurisdiction, made an error apparent on the face of the record in finding the suit abated when substitution had been ordered on 19th May 2014 within the one-year period. The Court found this ground not frivolous and one that ought to be argued fully, applying the Kinyanjui v Ketter standard that a single arguable ground suffices.

p. 5
03

Whether the intended appeal would be rendered nugatory if the orders are not granted

Holding

The appeal would be rendered nugatory if the suit property changes hands, as it would be lost and possibly transferred beyond the applicants' reach

Reasoning

The applicants averred that unless stay is granted the suit property is likely to change hands, rendering a successful appeal nugatory. The Court applied Raol Investments v Lake Credit Finance, where the danger of the respondent executing a transfer and passing the property to third parties justified preservation. The 1st respondent's completion of transfer and issuance of title reinforced the risk.

p. 5

Legal principles established

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  • To succeed on an application under rule 5(2)(b), an applicant must show an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted
  • It is the filing of the Notice of Appeal that clothes the Court with jurisdiction to entertain a rule 5(2)(b) application
  • A single arguable ground suffices for the first condition of rule 5(2)(b); certainty of success is not required

Court orders

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  1. 1.Injunctive orders restraining the respondents, their agents and/or servants from selling, disposing of, leasing or in any way interfering with L.R. No. Naivasha/Mwichiringiri Block 1/32 pending the hearing and determination of the intended appeal
  2. 2.An order of inhibition registered against L.R. No. Naivasha/Mwichingiri/Block1/32 pending hearing and determination of the intended appeal
  3. 3.Declined to set aside the orders declaring the suit as abated
  4. 4.If the appeal has not been filed, it must be filed within 45 days, failing which the injunctive orders automatically lapse
  5. 5.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court at Nairobi (Milimani High Court Commercial Courts)
Milimani High Court Commercial Courts No. 254 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Order that the suit has not abated and should be heard on merit

The Court declined to set aside the abatement orders, finding such an order premature at this stage

p. 6

Costs

The costs of the application shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are satised that the orders sought by the applicants are merited. We accordingly grant injunctive orders restraining the respondents, their agents and/or servants from selling, disposing o, leasing or in any way from interfering with the property known as L.R. No. Naivasha/Mwichiringiri Block 1/32 pending the hearing and determination of the intended appeal.
p. 6Final orders - injunction granted
We further direct that an order of inhibition registered against L. R. No. Naivasha/Mwichingiri/Block1/32 pending hearing and determination of the intended appeal.
p. 6Final orders - inhibition registered
In the event that the applicants have not led their appeal we direct, considering the time when the decision the subject of the intended appeal was delivered, that the appeal be led within 45 days in default of which the injunctive orders issued herein shall automatically lapse.
p. 6Final orders - 45-day filing condition
To succeed in such an application, a party must satisfy the Court, rst, that it has an arguable appeal; and, secondly, that its appeal or intended appeal, were it to succeed, would be rendered nugatory if the orders sought are not granted.
p. 5Rule 5(2)(b) twin principles
We decline to set aside the orders declaring the suit as bated which order is premature at this stage.
p. 6Relief refused - abatement order preserved

Issues in the judgment

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minor

The case number is given as No. 254 of 2010 in the heading but No. 245 of 2010 in paragraph 1

minor

Typographical error in the final orders: 'declaring the suit as bated' instead of 'abated'

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, "Kaburi & 2 others v Njuguna & 2 others", Case Analysis (2026). Civil Application E347 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1730/eng@2026-09-25

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