Peter Wanjohi Kamau v Francis Kinyanjui Githinji

1446 to the respondents within 30days from the date of judgment; and the 1st applicant to pay mesne profits assessed at Kshs.15,000/- per month to the respondents starting from the month of September 2010 until the date of delivery of vacant possession of the suit properties. 3. Aggrieved and dissatisfied with the said judgment the applicants preferred an appeal to this Court and subsequently the 1st applicant filed the instant application. He argues that he has an arguable appeal and has annexed a memorandum of appeal dated 27th January, 2024 challenging the trial court’s decision on seven (7) grounds, mainly that the learned trial judge erred in law and fact; in failing to give effect to the terms of an express trust created by deed over the suit lands and delivering a judgment that was against the terms of that trust, thus unlawfully nullifying the trust, and allowing the claim for mesne profits whereas the same was against the agreement of the parties over possession and use of the suit lands. Lastly, he argues that his appeal would be rendered nugatory if execution proceeded and was apprehensive that if the same commences the suit properties may be alienated to strangers and be out of reach for restitution and repossession as that is only his residence and that of his family, the mesne profit which ran to approximately Kshs.6,250,000/- would put him into inextricable financial hardship with no hope of restitution, and that he may be declared to be in contempt of the decree hence committed to jail or fine which injury is irrecoverable. 4. The respondents did not file their response to the application neither did they file their written submissions. At the hearing thereof, learned counsel Mr. Kimani appeared for the 1st applicant. Although served with hearing notices, there was no appearance for the 2nd applicant and the respondents. 5. In his oral submission which was a brief summary of the 1st applicant’s written submissions dated 26th February, 2025, Mr. Kimani argued that the appeal is arguable since the trial court erred in finding that the suit properties were held in trust despite evidence showing that the 1st applicant had a proprietary interest through contribution to their purchase and also had a right to occupy one of the houses. He also contended that the order requiring payment of mesne profits of about Kshs.6 million was unjustified because the 1st applicant had lawful occupation under the trust agreement. Further, he stressed that although the 1st applicant had already vacated the property for fear of eviction and contempt proceedings; other consequential orders such as transfer of the titles to the respondent; possible disposal of the properties to third parties; and, execution for costs all posed a real risk of rendering the appeal nugatory. He maintained that if transfers were effected or civil jail ordered for contempt, the prejudice would be irreversible. Additionally, he argued that monetary compensation would not adequately address the sentimental value of the home the 1st applicant had lived in for 18 years. With the foregoing, Mr. Kimani urged this Court to grant a stay as prayed for. 6. We have carefully considered the application, both the oral and written submissions by the 1st applicant, the authorities and applicable law. The principles that govern this Court when dealing with such application under rule 5(2) (b) are well settled. It is required that the applicant satisfies this Court on the twin principles; first, that he has an arguable appeal; secondly, that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory. This has been expressed in a plethora of decisions by this Court. See. Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] KECA 378 (KLR). We need not emphasize that the twin principles must both be satisfied to warrant the grant of the orders. 7. On the first limb, as to whether or not the intended appeal is arguable, we have perused, inter alia, the affidavit in support of the instant application and grounds expressed in the memorandum of appeal annexed to the application. The 1st applicant’s stated that he contributed to the purchase of the suit property as a partner and joint owner and the court’s finding that the 1st respondent was sole owner https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1312/eng@2026-07-10 2

page 2 of 3

disregarded the intention of the parties and the representations made to him by the 1st respondent. The 1st respondent contends that the order to pay mense profits for possession of suit property which was contractual was in error. We are aware that the arguable grounds raised need not succeed on appeal, all the applicant needs to demonstrate is that they are worthy of consideration by this Court. We are satisfied that this limb has been met. 8. On the question of whether the intended appeal may be rendered nugatory, we agree with the 1st applicant that if titles to the suit property are transferred to third parties, the titles may be alienated, beyond the reach of the 1st applicant. That will render the appeal nugatory as the substratum of the suit will be lost. We are also satisfied that execution for the mesne profits was for a protracted period of time and which runs into millions of shillings should be halted pending the determination of the appeal. We are satisfied that on a balance of convenience, the weight tilts in favour of the applicant as the 1st respondent will be compensated if the appeal fails. 9. With the foregoing and upon exercising our unfettered discretion, we grant limited stay restraining the transfer or disposal of the suit properties and suspending execution for mesne profits pending the hearing and determination of the appeal. However, this Court declines to grant a mandatory order which will have the effect of allowing the 1st applicant to return to the suit premises which he vacated voluntarily. 10. The result is that the application dated 7th February, 2025 is allowed in terms of order (a). The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NYERI THIS 10TH DAY OF JULY, 2026. S. ole KANTAI ……………… JUDGE OF APPEAL J. LESIIT ……………… JUDGE OF APPEAL A. O. MUCHELULE ……………… 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/2026/1312/eng@2026-07-10 3

page 3 of 3