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Court of AppealDismissedCivil Application No. E30 of 2024

Vicky (Suing as the Legal Representative and Administrator of the Estate of Mathew Kipruto Murgor) & 2 others v Ronoh & 3 others; Murgor & 6 others (Interested Parties) (Civil Application E030, E031 & E035 of 2024 (Consolidated)) [2025] KECA 703 (KLR)

Court of Appeal
25 April 2025
4,221 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal refused to halt execution in a family succession dispute, confirming stay applications fail unless both arguability and nugatory-impact tests are met.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Mativo, Gachoka and Odunga, JJ.A) delivered on 25th April 2025 determining three consolidated applications brought under Rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stay of execution of a ruling of Omondi, J. delivered on 12th May 2022 in Eldoret High Court Succession Cause No. 112 of 2011, and in two of the applications, stay of the succession proceedings themselves. The dispute arises from the intestate estate of William Cherop Murgor, who died in 2006 leaving five widows and 35 beneficiaries. The applicants claimed the trial court erred in dismissing their application for joinder, treating a section 76 Law of Succession Act application as an objection, determining land disputes, and disregarding gifts inter vivos. The court applied the two-pronged Rule 5(2)(b) test. It found the intended appeals arguable, holding that a single arguable ground suffices and need not succeed. However, it held the nugatory prong failed: the final judgment of 20th December 2024 directed valuation and sale of estate properties but allowed beneficiaries in possession to offset property values against their pro rata shares and retain the properties, so the applicants stood to be compensated if their appeals succeeded; their apprehensions of alienation were premature and misplaced. The court also cautioned against staying execution of an interlocutory ruling after final judgment, as this may amount to staying the final judgment through the back door. The consolidated applications were dismissed with each party bearing their own 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' intended appeals are arguable under Rule 5(2)(b) of the Court of Appeal Rules, 2022
  2. 2.Whether the intended appeals, if successful, would be rendered nugatory in the absence of stay of execution and stay of proceedings
  3. 3.Whether the applications were rendered moot by the final judgment of 20th December 2024
  4. 4.Whether each party bore their own costs given the family nature of the dispute

Key legal issues

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01

Arguability of the intended appeals

Holding

The intended appeals were arguable; a single bona fide arguable ground suffices and need not succeed.

Reasoning

Applying the settled Rule 5(2)(b) principles, the court found the draft memorandum raised non-frivolous grounds, including that the chamber summons of 5th November 2015 did not meet the requirements of sections 68 and 69 of the Law of Succession Act, disregard of constitutional rights, alleged usurpation of the Environment and Land Court's jurisdiction, and disregard of gifts inter vivos. Definitive findings of fact or law were not required at this stage.

p. 7
02

Nugatory value of the intended appeals absent stay

Holding

The applicants failed to demonstrate that the appeals would be rendered nugatory; their apprehensions were premature and misplaced because the final judgment provides a mechanism for possession-holders to offset property values against their shares and retain the properties.

Reasoning

The final judgment of 20th December 2024 directed valuation and sale of estate properties but gave beneficiaries in possession first priority to offset the values of the properties from their pro rata shares, retaining them if successful. If the appeals succeeded, the applicants would be compensated with the value of their respective properties. No alienation, transfer, or threat to take possession had been demonstrated.

p. 8
03

Stay of execution of an interlocutory ruling after final judgment

Holding

A court ought to be slow to stay execution of a ruling in a case where a final judgment has been pronounced, as it may delay implementation of the final judgment or amount to staying it through the back door.

Reasoning

The succession cause had been pending since 2011 and a final judgment was delivered on 20th December 2024. The intended appeals targeted an earlier ruling, not the final judgment. The court reasoned that staying execution of that ruling would risk delaying the final judgment and prejudicing any appeal against it, so the order was inappropriate.

p. 8

Legal principles established

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  • Both Rule 5(2)(b) pre-requisites must be satisfied for relief to issue: the appeal or intended appeal must be arguable and, unless stayed, will be rendered nugatory.
  • A court ought to be slow to grant stay of execution of an interlocutory ruling where a final judgment has already been pronounced, as it may amount to staying the final judgment through the back door.
  • Stay of proceedings is a grave interruption in a party's right to litigate on the merits and should not be imposed unless the proceeding beyond all reasonable doubt ought not to continue.

Court orders

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  1. 1.The three consolidated applications were dismissed
  2. 2.Each party to bear his/her own costs

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
High Court
Eldoret High Court Succession Cause No. 112 of 2011
Jurisdiction invoked
Rule 5 (2) (b) of the Court of Appeal Rules, 2022 (derived from Article 164 (3) of the Constitution)
Consolidated with
Civil Application No. E31 of 2024, Francis Murgor vs. Enid Cheptanui Ronoh & 3 Others, Civil Application No. E35 of 2024, Dr. James Murgor vs. Enid Cheptanui Ronoh & 3 Others

Relief refused

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Stay of execution of the ruling/orders of 12th May 2022

Only one of the two Rule 5(2)(b) thresholds (arguability) was satisfied; the applicants failed to demonstrate the appeals would be rendered nugatory, and their apprehensions were premature given the final judgment's compensation mechanism

p. 8

Stay of proceedings in Eldoret High Court Succession Cause No. 112 of 2011

A final judgment had been pronounced; staying execution of an earlier ruling would amount to staying the final judgment through the back door

p. 8

Costs

Each party to bear his/her own 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.

It is clear to us that Rule 5(2) (b) is essentially a tool of preservation. It safeguards the substratum of an appeal, if invoked by an intending appellant, in consonance with principles developed by that Court over the years
p. 6Nature of Rule 5(2)(b) jurisdiction (quoting Supreme Court)
It is trite law that the applicant need not show a multiplicity of arguable points. One arguable point is sufficient to satisfy the first principle.
p. 7Arguability threshold
In conclusion, it is a requirement that for any relief to issue under Rule 5 (2) (b), both precepts must be satisfied. As held earlier, only one ingredient has been satisfied. These consolidated applications therefore fail on this account and are hereby dismissed.
p. 8Final orders and disposition
Considering that the litigation giving rise to these applications involves a succession dispute pitting members of the same family, we direct each party to bear his/her own costs.
p. 8Costs order

Issues in the judgment

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minor

Internal inconsistency in dates: paragraph 1 states the lead application is dated 3rd June 2024, paragraph 7 refers to orders 'issued 12th May 2024', paragraph 9 refers to orders 'issued on 22nd May 2022', while the ruling itself was delivered 12th May 2022; the court itself notes the 22nd May 2022 ruling 'does not exist'.

minor

Paragraph 34 refers to 'The applicant in E020 of 2024' although the consolidated files are E030, E031 and E035 of 2024.

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, "Vicky (Suing as the Legal Representative and Administrator of the Estate of Mathew Kipruto Murgor) & 2 others v Ronoh & 3 others; Murgor & 6 others (Interested Parties) (Civil Application E030, E031 & E035 of 2024 (Consolidated)) [2025] KECA 703 (KLR)", Case Analysis (2025). Civil Application No. E30 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/703/eng@2025-04-25

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