Ibrahim Mutuma M’muguongo & 1 other v Stephen Marangu Mugambi

3. We heard the application on 3rd June 2026. Learned counsel Mr. Kiautha Ariithi appeared for the applicants and relied entirely on the grounds appearing on the face of the application, the supporting affidavit of the 1st applicant and written submissions dated 19th May 2026. Although the law firm of Muchomba Law Advocates was duly served with notice of hearing, there was no appearance for the respondent but filed a replying affidavit in opposition to the application sworn by the respondent on 12th May 2026. 4. We have considered the application, the affidavits and the submissions against the principles applicable in applications of this nature as articulated by the Court in case of Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others [2013] KECA 378 (KLR). As to whether the intended appeal is arguable, learned counsel has urged that the finding by the trial court that was upheld by the ELC that the applicants hold the property in trust for the respondent is faulty; and that there was no evidence to support that finding. Although the respondent in his replying affidavit asserts that the application is an abuse of the process of the court, bearing in mind, as held by the Court in Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Limited & 2 Others [2009] eKLR, that an arguable appeal is not one that necessarily succeeds we are persuaded that the intended appeal is not frivolous. The question whether the learned Judge discharged the duty of a first appellate court and correctly re-appraised the evidence tendered before the trial court in arriving at his decision is in our view arguable. 5. On the nugatory aspect the applicants contend that the cancellation of the title to the property in execution of the decree will effectively render the intended appeal an academic exercise as there is a risk that the property may then be transferred to third parties out of reach of the applicants. Although the respondent has deponed that the decree of the Magistrate’s court has already been acted upon and registered against the title, it is not shown that the property has been transferred. In the circumstances, and given that the object of a stay order is to preserve the subject matter in dispute, the order we make is to allow the applicants’ application to the extent that the respondent is hereby restrained from transferring the property known as Title Number Nkuene/Mitunguu-Kithino/2272 in execution of the judgment of the Magistrate’s court, pending the hearing and determination of the appeal. The costs of the application shall abide the outcome of the appeal. Orders accordingly. DATED AND DELIVERED AT MERU THIS 5TH DAY OF JUNE 2026. S. GATEMBU KAIRU, FCIArb, CArb. …………………………… JUDGE OF APPEAL G. V. ODUNGA …………………………… JUDGE OF APPEAL G. ONG’UDI …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1091/eng@2026-06-05 2

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