CMM v TOL (Civil Application E237 of 2025) [2025] KECA 1481 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause enforcement of a divorce property order because the appealing spouse faced no real hardship.
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, absent stay, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
Yes - whether the trial court erred in finding the applicant had not rebutted the presumption that joint registration meant equal interest raised an arguable point
The court applied the settled Rule 5(2)(b) standard that an arguable point need not succeed but must be deserving of consideration. It found that the challenge to the trial court's treatment of the presumption arising from joint registration of the suit property was sufficient to disturb the minds of the bench that would hear the intended appeal. The first limb of the test was therefore satisfied.
Whether the appeal would be rendered nugatory absent stay
No - the applicant failed to demonstrate greater hardship or irreparable prejudice
The court weighed the conflicting claims of both sides. The respondent is a registered joint owner who was removed from the property by restriction and excluded from rental proceeds since 2021. The applicant does not reside in the property, having rented it out, so she faces no homelessness, and she retains the option to buy out the respondent after valuation. Denying stay therefore causes her no hardship disproportionate to the respondent's suffering.
Legal principles established
#- To succeed on stay under Rule 5(2)(b), an applicant must show the intended appeal is arguable on at least one point and that, if successful, it would be rendered nugatory absent stay
- An arguable point need not be one that must succeed; it suffices that it is deserving of the Court's consideration
- Factors rendering an appeal nugatory are considered within the circumstances of each case, and the court is obliged to weigh the conflicting claims of both sides
Court orders
#- 1.The application for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules, 2022 is dismissed
- 2.Costs shall abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani
- Matrimonial Property cause arising from Divorce Cause No. 382 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the High Court decree pending the intended appeal
The nugatory-prong of the Rule 5(2)(b) threshold was not met; the applicant is not in residence and has the buyout option
Costs
Costs shall abide the appeal
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.
to succeed on the question of stay under Rule 5(2)(b) of the Rules, an applicant has to show that the intended appeal is arguable, on at least one point. Once this is established, the applicant has to demonstrate that, if the intended appeal were to be successful, it would be rendered nugatory absent stay.
We dismiss the application, and order that costs shall abide the appeal.
the applicant has not demonstrated that the intended appeal will be rendered nugatory, if stay is not granted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CMM v TOL (Civil Application E237 of 2025) [2025] KECA 1481 (KLR)", Case Analysis (2025). Notice of Motion dated 10th April 2025 (arising from Divorce Cause No. 382 of 2020, Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1481/eng@2025-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.