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Court of AppealDismissedNotice of Motion dated 15th March 2024 (Court of Appeal, Nakuru)

Rono & another v Lagat & another (Civil Application E013 of 2024) [2025] KECA 626 (KLR)

Court of Appeal of Kenya
4 April 2025
1,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a land injunction bid because the applicants skipped the mandatory leave step required before appealing succession matters.

What this practically means

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Executive summary

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This was a single-judge-panel-free application (a coram of three Judges of Appeal: Mativo, Gachoka and Odunga, JA) in the Court of Appeal at Nakuru under Rule 5(2)(b) of the Court of Appeal Rules. The applicants, aggrieved by a ruling of the High Court (S. M. Githinji, J.) delivered on 30th April 2020 dismissing their application for revocation of a grant in a polygamous succession dispute over Nandi/Chemuswo/530, sought an injunction to restrain dealings with the suit land and an inhibition against its transfer, lease or charge pending determination of their application for extension of time to appeal. Their former advocates allegedly never informed them of the ruling; they filed a notice of appeal on 11th May 2020 and later an extension-of-time application. The respondents filed no response or submissions. The court restated the twin Rule 5(2)(b) principles (arguable appeal; appeal rendered nugatory) and the authorities tempering them - one arguable point suffices and it need not be shown that it would succeed. However, the court found a fatal jurisdictional defect: succession appeals require leave of the High Court or, if refused, of the Court of Appeal, and the applicants expressly admitted they never sought leave, applying Mughal & Rashid v Mohammed Shabir Bhola. That omission rendered the application incompetent, making it unnecessary to reach the twin principles. The application was dismissed with no orders as to costs.

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 satisfied the twin principles for relief under Rule 5(2)(b) - an arguable appeal and the nugatory-appeal test
  2. 2.Whether the application was competent given the absence of leave required in succession matters

Key legal issues

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01

Competence of a Rule 5(2)(b) application in a succession matter where leave was never sought

Holding

The application was incompetent and dismissable without considering the merits of the twin principles

Reasoning

The court noted that succession appeals require leave of the High Court or, failing that, of the Court of Appeal. The applicants expressly admitted they never sought leave, citing Mughal & Rashid v Mohammed Shabir Bhola. This omission was fatal, rendering the application a nonstarter regardless of any arguability of the intended appeal.

p. 3
02

The twin principles governing Rule 5(2)(b) applications

Holding

The court restated the established test but did not reach it, as incompetence disposed of the application first

Reasoning

The court restated that an applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay, citing David Morton Silversein v Atsango Chesoni, Yellow Horse Inns Ltd v A.A Kawir Transporters and Kenya Commercial Bank Ltd v Nicholas Ombija. Since the application was incompetent for want of leave, consideration of the twin principles was unnecessary.

p. 3

Legal principles established

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  • In a succession matter, an intending appellant must first obtain leave of the High Court or, if the High Court declines, of the Court of Appeal, before appealing; failure to seek leave renders the appeal application incompetent
  • To succeed under Rule 5(2)(b), an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent the orders sought
  • A single arguable point suffices on the arguability limb; the applicant need not show a multiplicity of grounds or that the point would succeed

Court orders

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  1. 1.The application is dismissed
  2. 2.No orders as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya
Succession matter (Nandi/Chemuswo/530) - ruling by S. M. Githinji, J.
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (interlocutory injunctive relief pending appeal)

Relief refused

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Order of injunction restraining trespass, cultivation, construction, surveying and demarcation of Nandi/Chemuswo/530 pending determination of the leave application

The application was incompetent because the applicants never sought the leave required in succession matters before lodging the intended appeal

p. 3

Order of inhibition restraining transfer, lease or charge of Nandi/Chemuswo/530 pending the intended appeal

Same incompetence; the court did not reach the twin Rule 5(2)(b) principles

p. 3

Costs

Dismissed with no orders as to costs.

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.

That is a fatal mistake that makes this application incompetent. So it is not even necessary to consider whether the applicant has met the twin principles for grant of stay under rule 5(2)(b) as the application is a nonstarter and can only head one way; a dismissal.
p. 3Want of leave in succession matters renders a Rule 5(2)(b) application incompetent
An applicant must demonstrate that they have an arguable appeal; and That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree, order or proceedings is not stayed.
p. 2Twin principles under Rule 5(2)(b)
Consequently, we dismiss the application with no orders as costs.
p. 3Final orders - dismissal and costs

Issues in the judgment

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minor

Coram signature blocks list only three judges but no presiding judge is designated; judgment does not name an author

minor

The judgment does not name the parties or case number in the style of cause beyond describing the applicant's motion, so full party names and appeal number cannot be confirmed from the judgment

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, "Rono & another v Lagat & another (Civil Application E013 of 2024) [2025] KECA 626 (KLR)", Case Analysis (2025). Notice of Motion dated 15th March 2024 (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/626/eng@2025-04-04

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