TGEM v KSM (Civil Application E164 of 2025) [2026] KECA 247 (KLR)
The bottom line
#The Court of Appeal refused to block the sale of a Kajiado property pending appeal because money could adequately compensate if the appeal succeeded.
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 under the first limb of Rule 5(2)(b)
- 2.Whether the intended appeal, if successful, would be rendered nugatory absent a stay of execution
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable because it raised at least one bona fide ground - whether all assets were acquired before the solemnization of the marriage.
The court applied the settled test that an arguable appeal is not one that must succeed but one that ought to be argued fully. The claim that the suit property was registered in the applicant's name in 1994 before the 1997 marriage raised a bona fide arguable point, but the court refrained from definitive findings to avoid embarrassing the bench hearing the main appeal.
Nugatory-ness of the intended appeal
The appeal would not be rendered nugatory because the impugned judgment awarded a quantifiable share of the suit property, making monetary compensation an adequate remedy.
The judgment awarded the respondent 35% of the suit property with a buy-out option; the property's value was ascertainable. Since execution would not cause irreversible loss and damages would adequately compensate the applicant, the second limb of Rule 5(2)(b) failed. As both limbs must be satisfied, the application was dismissed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs to obtain relief.
- Nugatory-ness turns on whether what is to be stayed is irreversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
- An arguable appeal need not necessarily succeed; it is one that is not frivolous and deserving of full argument.
Court orders
#- 1.The Notice of Motion dated 14th March 2025 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment and decree pending the intended appeal
The applicant satisfied the arguability limb but failed the nugatory limb, as the value of the suit property is ascertainable and monetary compensation would be an adequate remedy
Costs
The Notice of Motion dated 14th March, 2025 lacks merit and is hereby dismissed with costs to the respondent.
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.
As the applicant has to satisfy both limbs of Rule (5)(b), the Notice of Motion dated 14th March, 2025 lacks merit and is hereby dismissed with costs to the respondent.
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.
In considering the twin principles set out above, we are cognizant that to benefit from the discretion of this Court, both limbs must be demonstrated to the Court’s satisfaction.
The value of the property is ascertainable and monetary compensation would be an adequate remedy should the appeal succeed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TGEM v KSM (Civil Application E164 of 2025) [2026] KECA 247 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/247/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.