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Court of AppealStruck OutCivil Application No. E107 of 2023 (stay application in intended appeal)· [2025] KECA 345 (KLR)

Tsilla Nkirote Muthomo v Zipporah Kambura Muthomi

Court of Appeal of Kenya
28 February 2025
1,060 words in judgment
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The bottom line

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The Court of Appeal struck out a stay application because the applicant never filed a notice of appeal against the very ruling she wanted stayed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri on an application dated 9th July 2024 by Tsilla Nkirote Muthomi, the 1st administratrix of a deceased estate, seeking a stay of proceedings and further proceedings in Meru High Court Succession Cause No. 160 of 1997, and a stay of the order of 27th April 2023, pending the hearing and determination of her appeal in Civil Appeal No. E107 of 2023. In the Succession Cause, the High Court had found that the applicant was neither a widow nor a beneficiary of the estate, though children born of her relationship with the deceased were beneficiaries. On 15th February 2024 the High Court granted a stay of its proceedings pending the appeal, but on 23rd May 2024 it reviewed that ruling and set aside the stay after the respondent, the 3rd administratrix, argued that the 27th April 2023 order was a negative order incapable of being stayed. The applicant relied on authorities on arguability under rule 5(2)(b). The respondent opposed, deposing that no notice of appeal had been filed against the 23rd May 2024 ruling, the only notice on record being dated 5th May 2023 against the earlier ruling. The applicant filed no response, leaving those depositions uncontroverted. The Court restated the twin principles for stay under rule 5(2)(b) — an arguable appeal and nugatory-ness — but held that its jurisdiction to stay is contingent on a notice of appeal having been filed against the very ruling sought to be stayed within 14 days. No such notice existed, so the application was incompetent and was struck out. No costs order was recorded.

Key legal issues

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01

Competence of a rule 5(2)(b) application where the impugned decision was not appealed against

Holding

The application is incompetent where no notice of appeal was exhibited against the ruling sought to be stayed; the Court's jurisdiction is never invoked.

Reasoning

The Court held that its power to stay a ruling or judgment is conditional on a notice of appeal being filed within 14 days under rule 77 (now rule 5(2)(b)). The applicant sought to stay the 23rd May 2024 ruling setting aside the earlier stay, yet the only notice of appeal on record was dated 5th May 2023 against the 27th April 2023 ruling. The respondent's uncontroverted affidavit established this omission, so the jurisdiction of the Court was not properly invoked and the application fell to be struck out.

p. 3
02

Test for stay pending appeal under rule 5(2)(b)

Holding

The jurisdiction is discretionary and unfettered; the twin principles of arguability and nugatory-ness must be established on the facts of each case.

Reasoning

The Court restated the settled test from Trust Bank Ltd & Another v Investech Bank Ltd & 3 Others: the jurisdiction under rule 5(2)(b) is original and discretionary, and an applicant must show the intended appeal is arguable (not frivolous) and that, if successful, it would be rendered nugatory unless stay is granted. These principles are considered against the facts and circumstances of each case. The Court did not reach the merits because the application failed at the threshold of competence.

p. 2

Legal principles established

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  • This Court's jurisdiction to grant stay under rule 5(2)(b) requires a notice of appeal to have been filed against the ruling or judgment sought to be stayed within 14 days of delivery; absent such notice the application is incompetent.
  • An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is denied.

Court orders

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  1. 1.The application is struck out
On appeal from
High Court of Kenya at Meru
Succession Cause No. 160 of 1997
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules (stay of proceedings pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tsilla Nkirote Muthomo v Zipporah Kambura Muthomi", Case Analysis (2025). Civil Application No. E107 of 2023 (stay application in intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/345/eng@2025-02-28

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