Waweru & 2 others v Waruingi & 2 others; Nicmac Crest Limited & 2 others (Interested Parties) (Civil Appeal (Application) E162 of 2024) [2025] KECA 269 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause execution of a ruling revoking an estate grant, because reversing it later would fully restore the applicants' position.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' intended appeal is arguable (not frivolous)
- 2.Whether, absent a stay, the appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The grounds - that respondents are not beneficiaries and that the trial court lacked jurisdiction to re-determine issues decided with finality - are not frivolous and satisfy the first limb.
The court could not state with certainty that the grounds would succeed but found them bona fide issues worth consideration. It applied the settled standard that an arguable appeal need not be one that will ultimately succeed; a single arguable point suffices, subject to the second condition being met.
Whether the appeal would be rendered nugatory absent a stay
No: revocation of the grant merely reverts titles to the deceased's estate and does not bar the applicants from claiming in subsequent succession proceedings; the status quo ante is restorable and alleged third-party claims are compensable in damages.
The court noted the impugned order did not direct the applicants to vacate the suit property, the applicants had not specified what portions they occupied, and the order had reportedly been effected by registration. If the appeal succeeds, reversing the decision restores the status quo ante, so execution is not irreversible and speculative losses are compensable by damages.
Legal principles established
#- To obtain stay of execution under rule 5(2)(b), an applicant must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory absent stay; both must be demonstrated.
- An appeal is 'arguable' if it raises a bona fide issue worthy of consideration, not one that must succeed; a single arguable point suffices, subject to satisfaction of the second limb.
- An appeal is rendered nugatory where the effect of execution is likely to be irreversible or, if reversible, damages will not reasonably compensate the aggrieved party.
Court orders
#- 1.The applicants' Notice of Motion dated 27th May 2024 seeking stay of execution of the High Court ruling of 16th October 2023 is dismissed
- 2.The applicants shall pay the respondents' costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Succession Cause No. 1671 of 1993
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay of execution pending appeal)
Relief refused
#Stay of execution of the High Court ruling and order of 16th October 2023 pending appeal
The second limb (nugatory-ness) was not satisfied; if the appeal succeeds the status quo ante can be restored and any loss from speculative third-party suits is compensable by damages
Alternative prayer for maintenance of status quo over the suit properties pending appeal
It failed with the main prayer upon dismissal of the application
Costs
The application is dismissed with costs (costs to the respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the application dated May 27, 2024 fails and is dismissed with costs.
Both limbs must be demonstrated before a party can obtain relief under rule 5(2) (b)
It is therefore trite that demonstration of one arguable point will sufice
we are not satisfied that he loss they stand to sufier if such speculative suits were to be filed, cannot be compensated by award of damages should the appeal succeed.
It is so ordered.
Issues in the judgment
#Internal date contradiction: the affidavit refers to Letters of Administration dated '1st October 2029' while other passages state they were issued on '1st October 2019'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru & 2 others v Waruingi & 2 others; Nicmac Crest Limited & 2 others (Interested Parties) (Civil Appeal (Application) E162 of 2024) [2025] KECA 269 (KLR)", Case Analysis (2025). Civil Application No. Nai. 000 of 2024 (Rule 5(2)(b) Application in Intended/Expressed Appeal from Succession Cause No. 1671 of 1993). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/269/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.