Anthony Muiru Maina v Peter Kamau Kimani

3. The respondent, Peter Kamau Kimani was granted letters of Administration Intestate to the estate of Kimani Gachuya (the deceased) on 12th June 2018, which was later confirmed on 9th January 2020. The estate included land parcel LOC.18/Kirere/995. 4. In a ruling dated 13th July 2023 delivered in Kigumo Succession Cause No.58 of 2017 the trial court in an application filed by the applicant revoked the grant of letters of administration issued to the respondent. The court also restrained the respondent from interfering, selling, alienating or in any way dealing with the suit land or harassing, evicting or in any way interfering with the applicant’s possession or developments thereon. 5. In addition, the court declared all transactions, transfers or any dealings related to the suit land pursuant to the grant confirmed on 9th January 2020 null and void and revoked the title issued to the respondent, ordering that the title should revert to its rightful owner, the late Mwangi Githanda. 6. Aggrieved, the respondent moved to the High Court in Muranga through a memorandum of appeal filed on 27 th July 2023 challenging the ruling of the trial court in Kigumo Succession Cause No.58 of 2017. In a judgement dated 26 th March 2025, C.W.Githua, J. set aside the court’s ruling dated 13th July 2023 Page 2

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and all consequential orders and substituted therefor an order Page 3

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dismissing the applicant’s summons for revocation of the grant dated 29th September 2022 with costs to the respondent. 7. The applicant was aggrieved by the said judgement and filed a Notice of Appeal and the instant application, which is premised on the grounds on its face and the supporting affidavit of Anthony Muiru Maina dated 30th April 2025. The applicant deposes that he is in physical possession of the suit property and has extensively developed it by building his homestead. He emphasizes that he has buried his relatives, including his mother and his wife, on the land and without an urgent stay of execution, he faces imminent eviction by the respondent. This would cause him to lose his ancestral home and his entire livelihood leaving him destitute, thereby rendering his intended appeal completely nugatory. 8. The application is opposed through the replying affidavit of Peter Kamau Kimani dated 15th May 2025. It is deponed that Parcel LOC.18/Kirere/995 was legally subdivided into smaller plots being LOC.18/Kirere/2019, 2020, and 2021 and sold to third parties; he avers, inter alia, that the applicant is falsely claiming the original plot still exists. 9. He deponed that the High Court issued a negative order, dismissing the application and hence a negative order cannot Page 4

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be stayed. Finally, he avers that Maina has failed to prove he will suffer Page 5

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irreparable harm or that his eventual appeal will be rendered nugatory absent a stay. 10. The applicant, through the firm of Irungu Mwangi Nganga T.T & Co Advocates in the submissions dated 16 th May 2025 submits that the suit property, Loc. 18/Kirere/995 has been the subject of numerous ongoing court cases. He accuses the respondent of fraudulently obtaining a Certificate of Confirmation of Grant in the lower court by deliberately concealing these active ownership disputes from the presiding Judge. He submits that he has a strong prima facie intended appeal. He asserts that the High Court Judge failed to properly review and weigh his formal pleadings and evidence during the initial appeal. 11. On the nugatory aspect and irreparable harm, the applicant submits that if the Court denies the stay, the respondent will move quickly to illegally benefit from the estate. This would lead to the immediate eviction of the applicant from his lifelong home and the potential destruction of the buildings he erected. He contends that if he later wins the main appeal, a court cannot easily reverse an eviction or reassemble demolished structures, thus rendering his victory entirely nugatory. We are urged to allow the application as prayed. Page 6

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12. The respondent, through Mbue Ndegwa & Co Advocates, in their submissions dated 27th May 2025, submits that there is no arguable appeal as the applicant has failed to establish the test for stay under Rule 5(2)(b)of this Court’s Rules because the case involves the estate of Kimani Gachuya, not Mwangi Githanda. It is submitted that Land records green card show ownership legally changed hands to the respondent through settled succession causes. 13. It is submitted that the original land parcel, LOC.18/Kirere/995, was lawfully subdivided into multiple smaller plots ending in 2019, 2020, and 2021 and sold to third parties. Therefore, the original property no longer exists. Further, it is contended that the applicant is neither a legitimate beneficiary nor a creditor of the Estate of Kimani Gachuya. 14. Further, it is submitted that granting a stay would interfere with the quiet possession of innocent third-party buyers who purchased the subdivided land. 15. It is submitted that the applicant is trying to stay a dismissal order. The respondent notes that a dismissal is a negative order, and the Court cannot issue a stay of execution on a negative order. Reliance was placed on George Ole Sangui & 12 Others -vsPage 7

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Kedong Page 8

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Ranch Limited [2015] KECA 480 (KLR) and Njoka -vs-Njoka & 3 Others [2024] KECA 629 (KLR). 16. We are urged to dismiss the application with costs. 17. The principles guiding this Court in exercise of original jurisdiction under Rule 5(2)(b) of this Court’s Rules are wellsettled. As stated by this Court in Trust Bank Limited & Another -vs- Investech Bank Limited & 3 Others [2000] KECA 11 (KLR), an applicant must satisfy two twin conditions: they must demonstrate that the intended appeal is arguable, and not frivolous, and they must show that if the stay is denied, the success of the eventual appeal will be rendered nugatory. 18. Having examined the application, the supporting affidavit, the replying affidavit, and the rival submissions of counsel, two main legal hurdles emerge that dictate the outcome of this application. 19. The nature of the High Court order: The Negative Order Principle. The respondent contends that the High Court judgment delivered on 26th March 2025 is a negative order because it simply dismissed the applicant's summons for revocation of Page 9

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grant. We agree with this characterization. A negative order is one that does not command any party to do or refrain from doing anything; it leaves the parties in the exact same position they were in before moving the court. Page

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20. A stay of execution cannot be issued against a negative order, save for the aspect of costs. This is because a negative order is fundamentally incapable of execution. In Co-operative Bank of Kenya Limited -vs- Banking Insurance & Finance Union (Kenya) [2015] KECA 353 (KLR), this Court held that a stay of execution presupposes the existence of a positive obligation set out in a decree that can be delayed. The dismissal means the parties remain as they were. We appreciate that the application is inelegantly drawn, and the applicant may argue that he has prayed for orders of injunction and the prayers are not solely against negative orders. His prayers are couched as follows: “Pending the hearing and determination of the appeal, there be a stay of execution of the judgment and orders of 26th day of March 2005 in Muran’ga Family appeal No14 of 2023 for avoidance of doubt there be an order stopping/ barring the respondent, his servants or agents from evicting the applicant or transfering, leasing, charging or conducting any dealing in LR No.LOC 18/Kirere/995…” [emphasis ours] 21. We note that the appeal before the learned Judge was on the order revoking the Grant of letters of administration issued in favour of the respondent herein. The court set aside the said revocation and all consequential orders arising therefrom. None of the orders included an order of eviction against the applicant, Page

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which we can be called upon to stay. What the applicant is asking us to do through the “backdoor” is issue orders of injunction in the first Page

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instance, which we have no jurisdiction to do as this is a second appeal. 22. Our view of the matter is that, regardless of the framing of the prayers, essentially, the applicant is seeking a stay of negative orders as orders of injunction cannot lie, for the reasons we have given above. The issues touching on the sub-division of the suit property and whether the original title is still in existence are issues that will be determined in the substantive appeal and which cannot be dealt with at this point. For the foregoing reasons, we find that this application fails to meet the threshold required for applications under Rule 5(2)(b) of this Court’s Rules to succeed. 23. Accordingly, the application dated 30th April 2025 is without merit and is hereby dismissed, with an order that each party shall bear its own costs. Delivered and dated at Nyeri this 25th day of September 2026. W. KARANJA ........................................ JUDGE OF APPEAL S. ole KANTAI ........................................ JUDGE OF APPEAL ALIPage

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ARONI ........................................ JUDGE OF APPEAL Page

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I certify that this is a True copy of the original. SIGNED DEPUTY REGISTRAR Page

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