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Court of AppealAllowedCivil Application No. 37 of 2020

Peter Masula Killingo v Grace Nabiki Masula [2021] KECA 909 (KLR)

Court of Appeal of Kenya
5 March 2021
RNR.N. NambuyeASAsike-MakhandiaSKS. ole Kantai
569 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the sale of family land pending an appeal over whether inherited property counts as matrimonial property.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal (Nambuye, Asike-Makhandia and ole Kantai, JJ.A.) on a Motion dated 13th May, 2020 by Peter Masula Killingo seeking stay of execution of a judgment of the High Court at Meru (Mabeya, J.) delivered on 14th April, 2020 in H.C.C.C. No. 15 of 2018 (O.S.). The High Court had decreed that Grace Nabiki Masula was entitled to 50% of two properties (Nyaki/Mulanthankari/450 and Kitharene Adjudication Section Nos. 1411 and 1567), to be valued, with the applicant to pay her 50% of the value, failing which execution would issue. The applicant argued he would suffer irreparably because the respondent had not proved contribution to acquisition of the matrimonial property, that the trial court erred in ordering a 50% share of property he acquired through inheritance, and that the respondent sought to enter the properties for valuation. Applying the settled two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter & Others - arguability and nugatory-ness - the court found the draft grounds of appeal (on inheritance and on equal sharing) arguable, and found that the respondent, having obtained valuation reports and being in the process of execution, might dispose of the properties beyond the applicant's reach, rendering the intended appeal nugatory. The Motion was allowed, execution of the High Court judgment was stayed, and costs of the Motion were ordered to abide the appeal. The decision below was not disturbed; this is an interlocutory ruling on stay pending an intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory absent a stay of execution

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The grounds - that inherited property was wrongly treated as matrimonial property and that a 50% sharing order was wrong - are arguable.

Reasoning

The court perused the draft Memorandum of Appeal annexed to the Motion and identified two grounds: whether inherited property could form part of matrimonial property and whether equal 50% sharing was justified. Applying the Kinyanjui v Ketter principles, it found the points arguable, stressing that arguability does not require the point to succeed, only that it is not frivolous.

p. 1
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

Execution, including possible disposal of the properties, would render the intended appeal nugatory; stay granted.

Reasoning

The court noted valuation reports had been issued and the respondent was in the process of execution. She could enter the properties and dispose of them beyond the applicant's reach, meaning that even a successful appeal would be of no practical value. This satisfied the second limb of the stay test and justified the order sought.

p. 1

Legal principles established

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  • An applicant for stay pending appeal must show the appeal (or intended appeal) is arguable, not frivolous, and that it would be rendered nugatory absent stay.
  • An arguable point need not be one that must succeed on appeal.

Court orders

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  1. 1.Stay of execution of the Judgment of the High Court sitting at Meru dated 14th April, 2020
  2. 2.Costs of the Motion to abide the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority
AS
majority
SK
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 15 of 2018 (O.S.)
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal to grant stay of execution pending appeal (Motion brought 'under various provisions of law')

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For an applicant to succeed he must, firstly, show that the appeal, or intended appeal, as the case may be, is arguable, which is to say that it is not frivolous. Such an applicant must, in addition, demonstrate that the appeal would be rendered nugatory absent stay
p. 1Principles governing stay of execution pending appeal
We find these to be arguable points and this Court has held that an arguable point is not one that must succeed.
p. 1Meaning of an arguable point
We allow the Motion and stay execution of the Judgment of the High Court sitting at Meru dated 14th April, 2020. Costs of the Motion will abide the appeal.
p. 2Final orders and costs

Issues in the judgment

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minor

The citation year for the Kinyanjui v Ketter case appears in the judgment as '[2103] eKLR', which is an obvious typographical error for 2013; recorded as printed.

minor

The coram lists the court as sitting at Nyeri but the judgment is dated and delivered at Nairobi, an internal inconsistency on the delivery station.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Masula Killingo v Grace Nabiki Masula [2021] KECA 909 (KLR)", Case Analysis (2021). Civil Application No. 37 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/909/eng@2021-03-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.