Kaburi & 2 others v Njuguna & 2 others

2. By an application dated 5th August 2020, the applicants sought to have the said orders reviewed which application was dismissed on 26th October 2020, the court arming the suit had abated. Dissatised, the applicants led an application dated 1st December 2020 seeking stay orders against the execution of the rulings delivered 26th October 2020 together with the ruling delivered on 28th April 2020. They also sought for a prohibitory order. That application was found to have no merit and was dismissed on 30th July 2021 on the same grounds that the suit had abated. 3. The applicants have moved this Court vide Motion on Notice dated 1st October 2021 seeking orders that: this Court be pleased to restrain the defendants (sic), their agents and/or servants by way of an injunction from selling, disposing o, leasing or in any way from interfering with the plaintis (sic) quiet possession of all that property known as L.R. No. Naivasha/Mwichiringiri Block 1/32 pending the hearing and determination of the intended appeal against the order made on 26th October 2020; the Court be pleased to issue an inhibition order to be registered against L. R. No. Naivasha/Mwichingiri/ Block1/32 to protect the suit property pending hearing and determination of the appeal against the order made on 26th October 2020; and this court be pleased to order that the suit herein has not abated and the same should be heard on merit. 4. In the supporting adavit sworn by the 1st applicant, it was averred that the application for substitution was led within the prescribed time of one year and that application having been granted, the subsequent order made on 26th October 2020, whose eect was to review or vacate the earlier order made on 19th May 2014 substituting the deceased plainti, was made without jurisdiction. According to the applicants, the respondents never appealed against the order of 19th May 2014. 5. In opposition, the 1st respondent swore a replying adavit dated 16th November 2021 in which it was averred: that the issues raised in the application have been heard and fully determined in the suit from which the applicants intend to appeal; that as per the ruling of the court delivered on 12thApril 2011, the deceased’s equity of redemption over L.R No. Naivasha/Mwichingiri/Block1/32 ("the suit property") was extinguished at the fall of the hammer on 13th April 2010 when the 1st applicant bought the property through an auction conducted on behalf of the 2nd respondent by the 3rd respondent; that in the premises there are no sucient grounds to warrant the orders of prohibition sought by the applicants; that the applicants have over time failed to demonstrate with clarity and precision the alleged apparent error on the face of the record arising from the ruling of 28th April 2020; that the application has been overtaken by events in view of the fact that the transfer of the suit property has since been completed and the title issued in the deponent’s favour on 9th July 2021; that the application has no merit and does not disclose a prima facie case with a probability of success; and that the application is an abuse of the court process and ought to be dismissed with costs. 6. The plenary hearing of the application took place before us on 23rd March 2026 when learned counsel, Mr Kungu, appeared for the applicants. There was no representation for the respondents despite due service of the notice of hearing on their advocates on record. 7. On behalf of the applicants, it was submitted that the learned Judge erred on the face of the record when he found that the suit had abated, notwithstanding the orders of substitution already made on 19th May 2014. The applicants contended that the intended appeal has high chances of success and unless an injunction and stay orders are granted pending the intended appeal, the appeal is likely to be rendered nugatory and the applicants will suer irreparable damage as the property in the subject matter is likely to pass to the respondents. It was the applicants’ submission that as the suit property is still charged in favour of the 2nd respondent, no prejudice will be occasioned to the respondents. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1730/eng@2026-09-25 2

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8. On behalf of the 1st respondent, it was submitted that the basis of the applicants’ appeal arises from the court's declaration that the suit abated by the operation of the law as provided under order 24 rule 3. According to the 1st respondent, pursuant to Order 43 of the Civil Procedure Rules the applicants required leave to appeal without which the intended appeal is incompetent. In support of this position, the respondents relied on the cases of Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR and Serephen Nyasani Menge v Rispah Onsase [2018] eKLR. On whether an order of injunction is deserved, the 1st respondent submitted that the order issued on 28th April, 2020 was a negative order which is incapable of stay and reliance for this proposition was placed on Kaushik Panchamatia and 3 others v Prime Bank Limited and Another (2020) eKLR, Benard Njoroge Kibaki t/a Njowa Njemu Enterprises v Equity Bank Limited & Another (2020) eKLR and Catherine Njeri Maranga v Serah Chege & Another (2017) eKLR. Regarding the order of inhibition, the 1st respondent’s position was that the applicants have no interest in the suit property in view of the fact that their equity of redemption was extinguished upon the sale of the same to the 1st respondent and that the transfer has since been completed and a title deed issued in her name. To support this position, the 1st respondent cited the cases of Samuel Njoroge Mburu v Consolidated Bank of Kenya Limited [2014] eKLR and Sammy Ghannam v SBM Bank Kenya Limited & another [2021] eKLR and urged the Court to dismiss the application. 9. No submissions were led on behalf of the 2nd and 3rd respondents. 10. We have considered the application and the adavits in support and opposition thereto. We have also considered the written submissions of the parties. 11. Before we proceed to deal with the merits of the application, it was contended that the application is incompetent on the ground that leave to appeal is necessary before an appeal may be instituted. Rule 5(2)(b) of the Rules of this Court provides that: Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may— (b) 12. in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just." It is also instructive that Rule 77(4) of the Rules of this Court provides that: When an appeal lies only with leave or on a certicate that a point of law of general public importance is involved, it shall not be necessary to obtain such leave or certicate before lodging the notice of appeal. 13. The rationale for the above provision is that it is the ling of the Notice of Appeal that clothes this Court with jurisdiction to entertain proceedings before it. The position was reiterated in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR, in which the Court stated: “ Under Rule 5 (2) (b), the Court is entitled to give a preservative order where a notice of appeal has been lodged. It has been said time without number that in an application under Rule 5 (2) (b) what gives the Court the jurisdiction to hear and determine the motion is the ling of the notice of appeal…At the stage of determining an application https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1730/eng@2026-09-25 3

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under Rule 5(2) (b)there may be no actual appeal. Where there is no actual appeal already lodged there nevertheless must be intention to appeal which is manifested by lodging a notice of appeal. If there is no notice of appeal lodged, one cannot get an order under Rule 5 (2) (b) because as I have already pointed out the jurisdiction of the Court of Appeal is limited to hearing appeals from the High Court and if there is no appeal or no intention to appeal as manifested by lodgement of the notice of appeal the Court of Appeal would have no business to meddle in the 14. We are aware that there is a divergent of opinion in the Court as to whether what is contemplated under rule 5(2)(b) is a valid Notice of Appeal or just a Notice of Appeal. One view is encapsulated in the decision in the case of Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E096 of 2025) [2026] KECA 1093 (KLR) where the Court, citing the decision in Equity Bank Limited v West Link Mbo Limited [2013] KECA 320 (KLR), concluded that: “ Given that there is no valid Notice of Appeal on record, and there being no evidence that leave was granted to le the Notice out of time, we nd that we have no jurisdiction to determine this application for stay of execution brought under Rule 5 (2) (b) of the Court’s Rules, and for this reason, we must down our tools.” 15. The other view is the one recapitulated in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR where the Court expressed itself as hereunder: “The applicant led its notice of appeal against the said decision on 26th May, 2005; the Court accordingly has jurisdiction to hear and determine the motion for stay. Mr. Ohagga, learned counsel for the respondents Aquinas Francis Wasike (1st respondent) and Lantech Ltd. (2nd respondent) tried to argue before us that the notice of appeal led by the applicant is invalid and that, therefore, the Court cannot grant the order of stay prayed for. We, however, take note of the fact that no application has been made by the respondents for the striking out of the notice of appeal and as the Court has repeatedly pointed out Rule 52) (b) does not provide that "............ where a valid notice of appeal ....” Rule 74 itself does not talk about a valid notice of appeal. The validity or otherwise of a notice of appeal is to be determined in accordance with the provisions of Rule 80 under which a notice of appeal can be struck out. We do not see any reason for determining the validity or otherwise of a notice of appeal when an application under Rule 5(2) (b) is being considered.” 16. In declining to determine the validity of a Notice of appeal in an application under Rule 5(2)(b), this Court in Peter Njuguna Njoroge v Zipporah Wangui Njuguna [2013] eKLR held that: “We have anxiously considered the respondent’s objection that there is no valid notice of appeal on record. In our view, we must avoid making a determination on that issue because the rules of this Court expressly provide the parties with solutions, which they are yet to invoke. The rst is that a party who contends that a notice of appeal on record is invalid has a clear remedy under the rules how to deal with that notice. The second is that a party who has lodged a notice of appeal that is alleged to be invalid has an option under the rules to take steps to regularize any irregularity. As of now, neither the applicant nor the respondent has availed themselves of the remedies at their disposal under the rules.” 17. We appreciate that situations do arise where parties dissatised with a decision of the court below may wish to arrest their execution or implementation but due to reasons beyond their control, they https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1730/eng@2026-09-25 4

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were unable to obtain leave or timeously le the Notice of Appeal. It ought to be remembered that an application for leave to appeal before the trial court can be made either orally at the time the decision is delivered or formally within 14 days of the decision sought to be appealed against. Where the oral application is opposed or where the court declines to entertain the oral application, as sometimes happens, and one has to make a formal application, if the law were that leave be obtained before an application under rule 5(2)(b) can be entertained, it would occasion an injustice. 18. We will therefore not determine this application on the basis of whether or not leave to appeal was necessary and the consequences, if at all it was necessary, of not obtaining it. 19. The law governing an application under rule 5(2)(b) of this Court’s Rules is settled. To succeed in such an application, a party must satisfy the Court, rst, that it has an arguable appeal; and, secondly, that its appeal or intended appeal, were it to succeed, would be rendered nugatory if the orders sought are not granted. On the rst principle, the applicants submit that they intend to urge on appeal, inter alia, that in its decision, the trial court erred in nding that the suit had abated when, to the contrary, an order of substitution was made within the prescribed period. It is the applicants’ case that the learned Judge, without jurisdiction made an error apparent on the face of the record which error ought to have been reviewed. We are satised that on this ground, the applicants’ intended appeal against the decision of the trial court merits consideration. It is not frivolous though we cannot state with certainty that it will succeed. It is not the certainty of success of an appeal or intended appeal that informs the decision whether or not it is arguable but whether or not the ground ought to be argued fully before the Court. A single arguable ground suces for the purposes of the rst condition. See Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] KECA 378 (KLR) 20. The applicants are also required to satisfy the Court that their appeal will be rendered nugatory should the orders sought not be granted. Whether or not an appeal will be rendered nugatory will depend on the facts and circumstances of each case. As was held in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others (supra): “Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 21. In this case, the applicants have averred that unless the stay is granted, the suit property is likely to change hands in which case their intended appeal, if successful, will be rendered nugatory. This Court in Raol Investments Limited v Lake Credit Finance Limited [1998] KECA 97 (KLR) had this to say in such circumstances: “ On whether the applicant's intended appeal, if successful may be rendered nugatory if a stay is refused we say this. The respondent already has a judgment in its favour decreeing that the parcel of land known as Kisumu Municipality/Block 8/237, presently registered in the applicant's name, be transferred to it. Mr Owino Opiyo for the applicant informed us from the bar that the respondent intends to take steps to move the superior court to authorize its Registrar to execute the necessary transfer documents respecting the suit premises in favour of the respondent on behalf of the applicant as the registered owner. Should that happen the applicant will lose its property and there is the obvious danger that the respondent may transfer it to a third party and thereby take it beyond the reach of the applicant. In the event that the applicant's intended appeal succeeds it certainly will be rendered nugatory. It is therefore important that the property be preserved.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1730/eng@2026-09-25 5

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22. We are satised that the orders sought by the applicants are merited. We accordingly grant injunctive orders restraining the respondents, their agents and/or servants from selling, disposing o, leasing or in any way from interfering with the property known as L.R. No. Naivasha/Mwichiringiri Block 1/32 pending the hearing and determination of the intended appeal. We further direct that an order of inhibition registered against L. R. No. Naivasha/Mwichingiri/Block1/32 pending hearing and determination of the intended appeal. We decline to set aside the orders declaring the suit as bated which order is premature at this stage. In the event that the applicants have not led their appeal we direct, considering the time when the decision the subject of the intended appeal was delivered, that the appeal be led within 45 days in default of which the injunctive orders issued herein shall automatically lapse. 23. The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, (P), FCIArb, CArb. JUDGE OF APPEAL .................................. G.V. ODUNGA JUDGE OF APPEAL .................................. H.I. 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/2026/1730/eng@2026-09-25 6

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