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Court of AppealDismissedCivil Application E342 of 2024

Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachael Nyambura Kamau) v Gathecha & another

Court of Appeal
20 December 2024
2,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to protect a Ruiru land parcel because it had already been subdivided and no longer exists.

What this practically means

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Executive summary

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The applicants, administrators of the estate of the late Lucy Nyambura, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking an injunction restraining the respondents from dealing with parcel Ruiru/Kiu Block 2/4268 and a stay of proceedings arising from the judgment and decree of MD Mwangi J in Nairobi ELC Case No. 136 of 2020 delivered on 28th November 2022, pending an intended appeal. They asserted an arguable appeal based on the estate's alleged purchase of 20 shares in the respondent company in 1968, substantial loss, and the 1st respondent's unknown financial capacity. The 1st respondent opposed, deposing that the suit parcel had been sub-divided into 10 plots in 2006, some owned by non-parties, and that the ELC suit was concluded with only taxed costs outstanding. The court applied the twin Rule 5(2)(b) principles as summarised in Stanley Kangethe Kinyanjui v Tony Ketter. It found no arguable appeal: the applicants did not controvert the sub-division of the suit property, making any injunction orders in vain, and they admitted at the hearing that the claim regarding the 1st respondent's financial capacity lacked evidential support. On stay of proceedings, applying David Morton Silverstein v Atsango Chesoni, the court held the ELC court was functus officio, only execution of taxed costs remained, and no stay of execution had been sought. The motion was dismissed in its entirety with costs to the 1st respondent. The ruling does not disturb the ELC judgment; it is a discretionary interlocutory decision binding on no lower court but persuasive on Rule 5(2)(b) practice.

Questions the Court framed

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

  1. 1.Whether the applicants have an arguable appeal under Rule 5(2)(b)
  2. 2.Whether the intended appeal would be rendered nugatory absent an injunction
  3. 3.Whether an order of stay of proceedings in ELC Case No. 136 of 2020 should issue

Key legal issues

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01

Arguable appeal under Rule 5(2)(b)

Holding

The applicants failed to demonstrate an arguable appeal; the suit property no longer existed having been sub-divided, and the claim of the 1st respondent's unknown financial capacity was unsupported by evidence.

Reasoning

The court examined the draft memorandum of appeal and found the applicants sought an injunction over Ruiru/Kiu Block 2/4268, which the 1st respondent deposed had been sub-divided into 10 plots owned by non-parties. The applicants did not controvert this in the further affidavit. Their nugatory claim rested on an unsupported assertion of the 1st respondent's financial incapacity, which they admitted at the hearing had no evidential basis.

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Stay of proceedings

Holding

Stay of proceedings refused because the ELC court had become functus officio after judgment, only execution of taxed costs remained, and no stay of execution was sought.

Reasoning

The court applied the test in David Morton Silverstein v Atsango Chesoni, noting the judgment was delivered on 28th November 2022, the party and party bill of costs had been taxed, and the 1st respondent had moved to execution. There were no live proceedings to stay; the applicants had not sought stay of execution nor demonstrated irregularity in the taxation proceedings.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - arguable appeal and nugatory - and failing the first limb the application must fail.
  • A court will not issue injunctive orders against non-existent property; such orders are issued in vain.
  • Stay of proceedings is a grave remedy to be entertained only in the most deserving cases as it impedes the right to expeditious trial.

Court orders

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  1. 1.The applicants' motion dated 1st July 2024 is dismissed in its entirety
  2. 2.Costs of the application to the 1st respondent

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment & Land Court at Nairobi
Nairobi ELC Case No. 136 of 2020
Jurisdiction invoked
Article 159 of the Constitution of Kenya 2010; Sections 3A and 3B of the Appellate Jurisdiction Act, CAP 3; Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Injunction restraining the respondents from dealing with parcel Ruiru/Kiu Block 2/4268 pending the intended appeal

No arguable appeal; the suit property was sub-divided into plots owned by third parties and no longer exists, so an injunction would issue in vain; nugatory limb also failed

p. 4

Stay of further proceedings arising from the judgment and decree in ELC Case No. 136 of 2020

The ELC court is functus officio having rendered judgment; only execution of taxed costs remains and no stay of execution was sought

p. 5

Costs

Application dismissed in its entirety with costs to the 1st respondent.

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.

The totality of our findings therefore is that the applicants' motion dated 1st July 2024 is without merit and the same is hereby dismissed in its entirety with costs to the 1st respondent.
Final orders - dismissal of the motion
if this Court were to go ahead and issue injunctive orders against non-existent property, the same would be tantamount to issuing court orders in vain; a position that this Court frowns upon.
p. 4Injunctions over non-existent property
We are alive to the fact that stay of proceedings is a grave matter, to be entertained only in the most deserving cases as it impedes the right to expeditious trial.
p. 5Stay of proceedings standard
An applicant must satisfy the Court on both the twin principles.
p. 4Rule 5(2)(b) twin principles

Issues in the judgment

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minor

The block quotation from David Morton Silverstein v Atsango Chesoni is incomplete and runs directly into the court's own reasoning without a closing quotation mark.

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, "Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachael Nyambura Kamau) v Gathecha & another", Case Analysis (2024). Civil Application E342 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1948/eng@2024-12-20

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