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Court of AppealDismissedNot stated in the judgment (application dated 24th February 2025, arising from Nakuru HCC Succ. No. 57 of 2018)

Muraya & 2 others v Muraya & another (Civil Appeal (Application) E080 of 2024) [2025] KECA 1222 (KLR)

Court of Appeal
11 July 2025
JMJ. MativoMGM. GachokaGOG.V. Odunga
2,778 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a succession case, ruling that proving an arguable appeal alone is not enough—you must also show real harm.

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) on a notice of motion dated 24th February 2025 brought under Section 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2) and 5(2)(b) of the Court of Appeal Rules, 2022. The applicants, administrators of the intestate estate of Peter Muraya Chege, sought a stay of proceedings in Nakuru HCC Succ. No. 57 of 2018 pending their appeal against a High Court judgment of Chemitei, J. dated 19th October 2023, which held that the 1st respondent was the deceased's wife and that her children, born out of wedlock, were beneficiaries of the estate under section 3(2) of the Law of Succession Act. The court reaffirmed the settled twin principles for relief under Rule 5(2)(b): the applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory absent the orders. The first limb was satisfied, the court finding that whether strangers were allowed to benefit from the estate was arguable. However, the second limb failed: stay of proceedings is a drastic remedy granted only exceptionally, and the applicants' mere apprehension that beneficiaries named in the pending summons for confirmation of grant might dispose of allocated properties did not amount to concrete evidence of substantial loss or irreparable harm, particularly since the confirmation process was at a nascent stage. The application was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable and not frivolous
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory if stay of proceedings is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the ground that strangers were allowed to benefit from the deceased's estate raised at least one bona fide arguable ground for ventilation on appeal

Reasoning

The court applied the Stanley Kang'ethe Kinyanjui standard that an arguable appeal need not succeed but must not be frivolous. Without making definitive findings, it found that whether strangers were allowed to benefit from the estate was a question fit for resolution by the Court on appeal. The first limb of the Rule 5(2)(b) test was therefore satisfied.

p. 4
02

Whether the appeal would be rendered nugatory if stay of proceedings is not granted

Holding

No - the applicants' apprehension that beneficiaries may dispose of properties distributed to them fell short of the threshold; any hardship could be remedied by costs and the distribution process had not been concluded

Reasoning

The court held that stay of proceedings is a drastic, exceptional remedy requiring concrete evidence of substantial loss or irreparable harm, not subjective apprehension. Following Kenya Commercial Bank v Benjoh Amalgamated and Silverstein v Chesoni, if the appeal succeeds the High Court proceedings would simply have been rendered unnecessary, remediable by costs. The respondents' confirmation application was still at a nascent stage. The second limb failed and the application was dismissed.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both limbs - an arguable appeal and that the appeal will be rendered nugatory - and satisfying only one is insufficient
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully, and the court must not make definitive findings of fact or law at the interlocutory stage
  • Stay of proceedings is a drastic order to be granted only in exceptional cases with immense circumspection, and mere apprehension or fear is insufficient
  • An application for stay of proceedings based solely on the applicant's apprehension or fear does not meet the threshold; substantial loss or irreparable harm must be shown
  • Rule 5(2)(b) of the Court of Appeal Rules is a tool of preservation derived from Article 164(3) of the Constitution, illuminating the Court's inherent discretionary jurisdiction to preserve the substratum of an appeal

Court orders

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  1. 1.The Notice of Motion dated 24th February 2025 seeking stay of proceedings in Nakuru HCC Succ. No. 57 of 2018 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

JM
majority
MG
majority
GO
majority
On appeal from
High Court of Kenya
Nakuru HCC Succ. No. 57 of 2018
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act and Rules 1(2) & 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of further proceedings in Nakuru HCC Succ. No. 57 of 2018 pending the hearing and determination of the appeal

The applicants failed to satisfy the twin principles under Rule 5(2)(b); the appeal was held arguable, but the nugatory-prong failed because the apprehension of property being disposed of was insufficient and the appeal would not be rendered nugatory

p. 5

Costs

Dismissed with costs to the respondents

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.

These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
p. 4Twin principles for stay under Rule 5(2)(b)
an arguable appeal as one which must not necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous
p. 4Meaning of an arguable appeal
Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection.
p. 4Stay of proceedings as a drastic remedy
Accordingly, the Notice of motion dated February 24, 2025 fails and is hereby dismissed with costs to the respondents.
p. 6Final orders and disposition

Issues in the judgment

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minor

The judgment does not state the Court of Appeal case number or the names of the respondents other than the 1st respondent, and the body of the judgment refers to the applicants' notice of motion date inconsistently ('24th February 2025' vs 'February 24, 2025') - a minor stylistic variance only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Muraya & 2 others v Muraya & another (Civil Appeal (Application) E080 of 2024) [2025] KECA 1222 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 24th February 2025, arising from Nakuru HCC Succ. No. 57 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1222/eng@2025-07-11

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