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Court of AppealDismissedCivil Appeal No. E033 of 2025 (Application dated 27th February 2025)

Mbugua v Mbugua (Civil Application E117 of 2025) [2026] KECA 706 (KLR)

Court of Appeal of Kenya
25 March 2026
DMD. K. MusingaMNMumbi NgugiGOG. V. Odunga
2,328 words in judgment
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The bottom line

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The Court of Appeal refused to pause an equal estate distribution because the applicant would still receive his fair share either way.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Ngugi and Odunga, JJA) on an application under rule 5(2)(b) of the Court of Appeal Rules by George Gatheru Mbugua, an administrator and beneficiary of the estate of Samuel Gatheru Mbugua, who died intestate in 2006. The High Court (Riechi, J) had on 3rd July 2024 ordered distribution of the estate equally among the beneficiaries in accordance with the mode proposed by the respondent, Mary Mukami Mbugua, which was supported by a majority of the beneficiaries. The applicant sought stay of execution of that judgment and a temporary injunction restraining interference with the estate pending his appeal, Civil Appeal No. E033 of 2025. He argued that his own proposed mode of distribution, signed by all beneficiaries on 9th June 2019, was disregarded, that the estate had net liabilities exceeding Kshs. six million, and that the respondent was eager to execute and might irreversibly distribute the estate. The respondent opposed, contending that the applicant never filed a mode of distribution as directed, that eight of eleven beneficiaries supported her proposal, and that the equal distribution accorded with the law. The court applied the twin rule 5(2)(b) principles: arguability and nugatory value. While conceding arguability was possible, the court doubted it, since equal distribution accords with section 38 of the Law of Succession Act for intestacy. On nugatory value, the court held that the applicant, as a child of the deceased, would receive an equal share in any event, so refusing the orders would not render the appeal nugatory. The application was dismissed with costs to the respondent.

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
  2. 2.Whether, absent stay of execution or injunction, the appeal would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The court found the arguability of the appeal doubtful, as the impugned judgment distributed the estate equally in accordance with section 38 of the Law of Succession Act.

Reasoning

The crux of the applicant's case was that the deceased died intestate. However, the judgment of Riechi, J distributed the estate equally among the beneficiaries, which accords with section 38 of the Law of Succession Act applicable to intestacy. The court therefore doubted the arguability of the appeal but declined to say more at that stage.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

The appeal would not be rendered nugatory because the applicant, as a child of the deceased, is entitled to an equal share regardless of the outcome on his grounds of appeal.

Reasoning

The court weighed the circumstances of the parties and the justice of the case. Even if the applicant succeeded on his grounds - such as whether Riechi, J should have followed the ruling of Muchelule, J, a court of concurrent jurisdiction - he remains entitled to an equal share of the estate as directed by the trial court, so nothing irreversible would defeat his appeal.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both that the appeal is arguable and that it would be rendered nugatory absent the orders sought.
  • An arguable appeal need not be one that will necessarily succeed; it is one raising a question deserving consideration by the Court.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party; each case depends on its facts.

Court orders

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  1. 1.The Notice of Motion dated 27th February 2025 is dismissed with costs to the respondent

The bench

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

DM
majority
MN
majority
GO
majority
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the judgment dated 3rd July 2024

The applicant failed to satisfy the twin principles under rule 5(2)(b); success on appeal would not be rendered nugatory as he is entitled to an equal share under the impugned distribution

p. 4

Temporary injunction restraining the respondent from interfering with the estate pending appeal

Exercise of discretion in the applicant's favour was not merited on the circumstances and the justice of the case

p. 4

Costs

The Notice of Motion dated 27th February 2025 fails, and is hereby dismissed with costs to the respondent.

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.

In the result, the Notice of Motion dated 27th February 2025 fails, and is hereby dismissed with costs to the respondent.
p. 4Final orders - dismissal of the rule 5(2)(b) application
an arguable appeal is one that raises a question deserving consideration by the Court, and need not be one that will necessarily succeed.
p. 3Definition of an arguable appeal
A determination of the applicant’s appeal in his favour on the points he raises in his memorandum of appeal would not be rendered nugatory should the orders he seeks not be granted.
p. 4Nugatory value test not satisfied

Issues in the judgment

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minor

The judgment refers to the applicant as 'the appellant' in paragraph 2 before any appeal has been determined, and the memorandum of appeal is quoted as referring to 'thirteen (sic) beneficiaries' where the judgment elsewhere states there are eleven.

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, "Mbugua v Mbugua (Civil Application E117 of 2025) [2026] KECA 706 (KLR)", Case Analysis (2026). Civil Appeal No. E033 of 2025 (Application dated 27th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/706/eng@2026-03-25

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