Muthomi v Muthomi (Civil Appeal (Application) E107 of 2023) [2025] KECA 345 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if stay is not granted
- 3.Whether the application is competent, given that no notice of appeal was filed against the ruling of 23rd May 2024
Key legal issues
#Competence of a rule 5(2)(b) application where the impugned decision was not appealed against
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.
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.
Test for stay pending appeal under rule 5(2)(b)
The jurisdiction is discretionary and unfettered; the twin principles of arguability and nugatory-ness must be established on the facts of each case.
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.
Legal principles established
#- 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
#- 1.The application is struck out
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Stay of proceedings and/or further proceedings in High Court Succession Cause No. 160 of 1997 and stay of the order of 27th April 2023
The application was incompetent because no notice of appeal was filed against the ruling of 23rd May 2024 which the applicant sought to stay
Costs
No costs order is stated in the judgment
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.
The Applicant did not exhibit any such notice of appeal against the ruling delivered on 23rd May 2024, and therefore the instant application is incompetently filed, in so far as it seeks orders of stay of execution against a ruling not appealed against.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
For the reasons we have stated in this ruling, we find that this application is incompetent and is accordingly struck out.
Issues in the judgment
#Case name appears truncated or corrupted: 'Ranch & Another [2014] eKLR' lacks a first party and appears to be a typo inserted mid-sentence in paragraph 12.
Case name 'Nguruman Ltd vs. Shompole Group' is embedded mid-sentence in paragraph 12, suggesting an editing or citation error in the original text.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Muthomi v Muthomi (Civil Appeal (Application) E107 of 2023) [2025] KECA 345 (KLR)", 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.