Janet Chepngeno Kimeto v Nelly Awino Wadawi & 1 other
The bottom line
#Kenya's Court of Appeal protected a widow claiming spousal status from eviction pending her appeal, ruling the case raised arguable inheritance issues and eviction would be irreversible.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable because it challenges the trial court's findings on spousal status and dependency, which touch on fundamental rights to inheritance under the Law of Succession Act
The court acknowledged that the challenged findings are factual but held that they bear on inheritance rights and recognition of dependents under the Law of Succession Act. Applying the settled test, it found the appeal raises at least one bona fide issue deserving consideration, which is all the arguability limb requires.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory limb is satisfied because imminent eviction from the claimed matrimonial home may be irreversible and damages would not adequately compensate for loss of residence and dignity
The applicant faces imminent eviction proceedings in the Chief Magistrate's Court. If eviction occurs before the appeal is heard, restoration may not be possible, and damages cannot adequately compensate for loss of the residence and dignity. The court was therefore persuaded that interim relief was warranted under Rule 5(2)(b).
Whether alleged defects in the Notice of Appeal and its service defeat the application
The objection was not entertained because the respondents failed to invoke the procedure laid out in the Court's rules to impugn the notice
The respondents contended that the Notice of Appeal was never served, offending Rules 77-79 of the Court of Appeal Rules. The court declined to determine the issue on this application, holding that a specific procedure exists under the rules for impugning such a notice and that the respondents had not availed themselves of it.
Legal principles established
#- The Rule 5(2)(b) threshold requires an applicant to demonstrate that the appeal or intended appeal is arguable and that, absent the interim relief sought, the appeal will be rendered nugatory
- An arguable appeal need not succeed; it suffices that it raises a bona fide issue deserving consideration
Court orders
#- 1.Pending the hearing and determination of the appeal or intended appeal, an order of injunction restraining the respondents, their agents, servants, employees, or any persons acting under their authority from evicting, removing, dispossessing, or interfering with the applicant's occupation, possession, use, and access to L.R. Kisumu Municipality/Block 12/457/B3
- 2.Costs of the application shall abide the outcome of the appeal
- On appeal from
- High Court of Kenya (trial court, succession cause)
- Jurisdiction invoked
- Article 159 of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janet Chepngeno Kimeto v Nelly Awino Wadawi & 1 other", Case Analysis (2026). Court of Appeal Application under Rule 5(2)(b) (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1418/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.