Zanul Sadrudin Hasham Mohamed (3rd Co - Executor/Protestor) v Mohamed & 2 others
The bottom line
#Kenya's Court of Appeal froze the sale of one disputed flat in an estate, but allowed the rest of the estate's administration to continue.
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 intended appeal is arguable under rule 5(2)(b) of the Court of Appeal Rules, 2022
- 2.Whether, if the stay is not granted, the intended appeal would be rendered nugatory
- 3.The balance of convenience as between staying the whole administration of the estate and preserving only the disputed property
Key legal issues
#Arguability of the intended appeal
The contention that Flat No. 3 is held in trust for the applicant and is not an estate asset raises a bona fide question; the appeal is arguable to that limited extent
The court held that at the interlocutory stage it does not determine merits but only asks whether bona fide issues are disclosed. The applicant's resulting/constructive trust claim over Flat No. 3, invoking Echaria v Echaria and Kiebia v M'Lintari, stood out as a genuine point deserving interrogation on appeal.
Nugatory aspect
The appeal would not be rendered nugatory if administration proceeds, but sale of Flat No. 3 to third parties would render the appeal on that issue nugatory
The impugned orders facilitate administration under judicial supervision without extinguishing beneficial entitlement, so the appeal on the estate generally is not nugatory. However, transfer of Flat No. 3 would crystallize third-party proprietary rights, making restoration difficult, warranting preservation of that property alone.
Balance of convenience
Preserving only the disputed property occasions minimal prejudice compared to staying the entire estate administration
The respondents are entitled to proceed with administration without undue delay, but preserving one contested property causes minimal prejudice. The interests of justice favour administration continuing while only the genuinely contested property is preserved.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and nugatory limbs, which are conjunctive
- The threshold for arguability is low; a single bona fide point suffices
- The nugatory principle turns on whether the subject matter is reversible or whether damages would be an adequate remedy
Court orders
#- 1.Stay of execution of the High Court ruling in so far only as it authorizes or permits the valuation, sale, transfer, disposal or any other dealing with Flat No. 3, Ismailia Parklands Housing Co-operative Society Limited, pending the hearing and determination of the appeal
- 2.The administration of the remainder of the estate shall proceed in accordance with the orders of the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Milimani, Family Division
- HC Succ. Cause No. E1241 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
- Consolidated with
- Civil Appeal (Application) 1030 of 2025, Civil Appeal (Application) 1031 of 2025
Relief refused
#Stay of execution of the High Court ruling in respect of the whole estate
The impugned orders do not finally distribute the estate or extinguish the appellant's beneficial entitlement; only Flat No. 3 required preservation
Costs
No costs order is stated in the ruling.
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.
Both limbs must be satisfied as they are conjunctive and not alternative.
An arguable appeal is not one that must necessarily succeed. It is sufficient if it raises a single bona fide point deserving consideration by the Court.
Accordingly, the Notices of Motion dated 2nd December 2025 succeed ONLY to the extent that:
There shall be a stay of execution of the ruling of the High Court in so far only as it authorizes or permits the valuation, sale, transfer, disposal or any other dealing with Flat No. 3, Ismailia Parklands Housing Co- operative Society Limited, pending the hearing and determination of the appeal.
The administration of the remainder of the estate shall proceed in accordance with the orders of the High Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zanul Sadrudin Hasham Mohamed (3rd Co - Executor/Protestor) v Mohamed & 2 others", Case Analysis (2026). Civil Appeal (Application) 1030 & 1031 of 2025 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1737/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.