M'ikiao v M’Kiambati & another

he stood the risk of being evicted from the suit property. He urged that the respondents will not suer any prejudice if orders sought are granted. 3. The application was opposed by the 1st respondent vide his replying adavit sworn on 20th February, 2024. The 1st respondent deponed that the application was legally incompetent for reasons that: the 2nd respondent died on 19th December, 2020; that the applicant’s advocate is improperly on record for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, as the applicant was represented by a dierent advocate in the suit before the trial court; and, that the applicant’s appeal was time barred, having been led on 30th October, 2023, beyond the statutory sixty (60) day time limit. The 1st respondent averred that there was no imminent eviction threat to the applicant as alleged, as the 1st respondent and his daughter utilized the suit property, and having been doing so since 1944. He urged that the application has not satised the twin conditions necessary for grant of orders sought. He invited us to dismiss the application for lack of merit. 4. The application was canvassed by way of written submissions. The rm of Kaberia Arimba & Company Advocates was on record for the applicant. It was the applicant’s submission that he intends to appeal against the decision of the trial dated 8th February, 2023, which disallowed his application seeking to set aside an order of the court dated 27th July, 2022, that dismissed his suit before the said court. He urged that the balance of convenience tilts in his favour, as he is the one currently in occupation of the suit property together with his entire family, and that the respondents have threatened to evict him. He urged us to grant the orders sought so as to ensure his appeal is not rendered nugatory in the event it succeeds. 5. The rm of Carl Peters Mbaabu & Co. Advocates was on record for the 1st respondent. On whether the applicant has an arguable appeal, Counsel for the 1st respondent averred that the application was a nullity ab initio as it was led after the death of the 2nd respondent, who died on 19th December, 2020. He submitted that the applicant’s counsel failed to seek leave of court to come on record, considering that the applicant had a dierent advocate in the suit before the trial court, who led the notice of appeal lodged before this Court. It was his further submission that the applicant’s record of appeal lodged on 30th October, 2023, was led out of time, beyond the mandatory sixty (60) days, without leave of this Court. Counsel submitted that there was no prayer on the face of the application capable of being granted by this Court, as prayer (b) of his application sought stay of execution, pending hearing and determination of the application inter-parties, which was spent. 6. On the nugatory aspect, counsel for the 1st respondent submitted that, in the absence of a competent appeal, there existed no valid appeal capable of being rendered nugatory. He averred that the 1st respondent, being the registered proprietor, and his daughter, were in occupation of the suit property, to the exclusion of the applicant. He contended that no material has been placed before this Court to warrant grant of orders sought. 7. The 2nd respondent did not participate in the appeal. 8. We have considered the application, the grounds in support thereof, the replying adavit, the submissions, the authorities cited and the law. The principles for granting an order for stay of execution under Rule 5(2)(b) of this Court’s rules are well settled. This Court in the case of Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR delineated the jurisdiction of this Court in such an application as follows: “ The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show rstly that his appeal or intended appeal is https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1956/eng@2026-09-25 2

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arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 9. In the present application, the applicant is seeking an Order of this Court to stay the execution of a Judgment of the trial Court which dismissed his suit with costs. This Court’s perusal of the application clearly shows that the applicant seeks to stay a negative order of the trial. An Order of dismissal of a suit is not a positive Order capable of being stayed by the Court. There is nothing positive that was Ordered by the trial Court to be done or to be restrained from being done that is capable of being stayed by this Court. 10. This Court in Mbarak Said Ali & anor v Sultan Palace Development Ltd [2021] KECA 443(KLR) held thus: “ The applicants were not ordered to do anything or refrain from doing anything. In Western College of Arts and Applied Sciences v EP Oranga&3 others [1976] eKLR the learned judges stated thus: “what is there to be executed under the judgment, the subject of the intended appeal? The High Court merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered”.” 11. The dismissal of the applicant’s suit by the superior Court did not result in any positive Order, other than the Order for costs that is capable of being stayed by this Court. That being the case, it cannot in the circumstances be said that the applicant has an arguable appeal. 13. Further, it was evident from the replying adavit sworn by the 1st respondent that the 2nd respondent was deceased prior the applicant ling the present application. That being the case, the applicant was required to await the substitution of the deceased 2nd respondent before ling the application. Even if this application had merit, this Court cannot issue Orders against a deceased person’s estate in the absence of letters of administration being issued. 14. Having found that a negative Order cannot be stayed, it is immaterial for us to consider the nugatory aspect of the application. 15. The application lacks merit and is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ........................... JUDGE OF APPEAL L. KIMARU ........................ JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1956/eng@2026-09-25 3

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A.O. MUCHELULE ........................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1956/eng@2026-09-25 4

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