CMW v RMK & 3 others
The bottom line
#The Court of Appeal refused to pause a Nanyuki succession case, confirming Kenyan courts grant stays of proceedings only in rare, exceptional situations.
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
- 2.Whether, absent a stay of proceedings, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; the applicant had earlier litigated the same DNA issue in Nyahururu HCC No. 35 of 2017, which was dismissed and never appealed.
The court noted the undisputed fact that the applicant had previously sought DNA testing of the deceased's remains in a suit dismissed on 1st July 2021, and never appealed. Instead he filed the application that produced the impugned ruling. The court declined to make definitive findings at this stage but found the grounds did not persuade it that an arguable appeal existed.
Nugatory value of the intended appeal
The applicant failed to show irreparable, un-compensable loss; he still has a pending revocation application and a right of appeal if it fails.
The court weighed the consequences of declining the stay. The applicant has a pending application for revocation of the grant before the trial court; if it fails he may appeal. Nothing suggested that a successful appeal could not be compensated by damages, so the nugatory limb was not satisfied.
Threshold for stay of proceedings pending appeal
Stay of proceedings is granted only in exceptional circumstances; normal litigation hardships do not count and irreversible consequences must be shown.
Distinguishing stay of execution from stay of proceedings, the court held that courts are highly reluctant to pause an active trial. The applicant must prove markedly unusual circumstances in which proceeding without a stay would destroy the subject matter of the appeal, rendering any later victory useless.
Legal principles established
#- To succeed under Rule 5(2)(b) an applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent the order sought.
- Stay of proceedings is a drastic order granted only in exceptional cases with immense circumspection.
- Whether an appeal will be rendered nugatory is a question of fact determined case by case, with no rigid formula.
- An arguable appeal need only raise one bona fide issue worthy of consideration; it need not necessarily succeed.
Court orders
#- 1.The notice of motion dated 9th July 2026 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nanyuki
- Succ. Cause No. E007 of 2025 (Formerly Nyahururu Succ. Cause No. 28 of 2019)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings in Nanyuki High Court Succession Cause No. E007 of 2025 pending the hearing and final determination of the intended appeal
Applicant failed to satisfy the twin principles under Rule 5(2)(b): no arguable appeal demonstrated and no proof the appeal would be rendered nugatory
Costs
Dismissed with costs to the respondents
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.
It is settled law that to succeed in an application under Rule 5 (2) (b), an applicant must demonstrate that the appeal or intended appeal is arguable.
Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection.
Therefore, we find that the applicant has failed to satisfy the twin principles for grant of the orders sought pursuant to Rule 5 (2) (b). Accordingly, the notice of motion dated 9th July 2026 fails and is hereby dismissed with costs to the respondents.
Issues in the judgment
#Heading describes the application as dated 5th December 2025 while the body deals with an application dated 9th July 2026
Third respondent initials identical to first respondent (RMK listed twice)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CMW v RMK & 3 others", Case Analysis (2026). Civil Application E107 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.