Silas v Maloba & 2 others (Civil Appeal (Application) E244 of 2024) [2025] KECA 1912 (KLR)
The bottom line
#The Court of Appeal stopped changes to an inheritance land deal until an appeal decides who truly owns the two acres.
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 in Kisumu Civil Appeal No. E244 of 2024 is arguable
- 2.Whether the intended appeal would be rendered nugatory if the injunctive relief sought is not granted pending the appeal
Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
The Court found the draft Memorandum of Appeal arguable, particularly on the propriety of the trial court's endorsement of a compromise excluding the applicant, the disputed parentage of the 3rd respondent, and the fairness of the rectification process.
The Court applied the settled test that only a single bona fide arguable ground is required, and an arguable ground need not ultimately succeed. It identified the legality of the compromise that removed the applicant from the Certificate of Confirmation of Grant, the disputed familial relationship between the 3rd respondent and the deceased, and the procedural fairness of the rectification as issues deserving full judicial consideration.
Whether the intended appeal would be rendered nugatory absent injunctive relief
The second limb was satisfied because the applicant is in actual and exclusive possession of the suit land, has developed it, and faces eviction and third-party transfer that damages could not adequately remedy.
The Court held the inquiry is fact-specific and guided by the overriding objective of preventing a hollow victory. Land rights and physical possession, unlike a money decree, cannot be adequately compensated by damages. The applicant's cultivation, trees nearing maturity, threats of eviction and indications of disposal to third parties created a risk of irreversible loss that would defeat the substratum of the appeal.
Legal principles established
#- To succeed on an application under Rule 5(2)(b), an applicant must show that the appeal or intended appeal is arguable and that, if successful, it will be rendered nugatory unless a stay is granted; both limbs must be demonstrated.
- An arguable appeal is not one that must necessarily succeed, but one that is not frivolous and deserves to be argued fully before the court.
Court orders
#- 1.The application dated 28th May 2025 is allowed
- 2.Injunctive reliefs sought are granted pending the hearing and determination of Kisumu Civil Appeal No. E244 of 2024
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega High Court Succession Cause No. 1237 of 2012
- Jurisdiction invoked
- Sections 3A(1) and 3B of the Appellate Jurisdiction Act and Rules 1(2), 5(2)(b), 31 and 47 of the Court of Appeal Rules
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 jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
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.
Unlike a money decree, the subject matter here involves land rights and physical possession, which, if disrupted, cannot be adequately remedied by an award of damages.
The injunctive reliefs sought are hereby granted, pending the hearing and determination of Kisumu Civil Appeal No. E244 of 2024. Costs of the application shall abide the outcome of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas v Maloba & 2 others (Civil Appeal (Application) E244 of 2024) [2025] KECA 1912 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)) arising from Kisumu Civil Appeal No. E244 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1912/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.