Kaburi & 2 others v Njuguna & 2 others
The bottom line
#Kenya's Court of Appeal froze the sale of a Naivasha farm pending an appeal, but the applicants must file that appeal within 45 days or the protection lapses.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court should determine the validity of the notice of appeal or the need for leave at the rule 5(2)(b) stage
The Court declined to determine the application on the basis of whether leave to appeal was necessary, noting the divergent views within the Court and the potential injustice of requiring leave before a rule 5(2)(b) application
The Court acknowledged divergent authority: one line (Mbugua v Waema, citing Equity Bank v West Link Mbo) requires a valid notice of appeal; another (National Industrial Credit Bank v Wasike; Peter Njuguna Njoroge) holds validity should not be determined at this stage, with remedies under the Rules available. The Court also noted that requiring leave first could occasion injustice where oral applications are opposed. It therefore sidestepped the competence objection entirely.
Whether the intended appeal is arguable
The intended appeal, on the ground that the trial court erred in finding the suit had abated despite a substitution order made within the prescribed period, is arguable and merits consideration
The applicants contend the trial judge, without jurisdiction, made an error apparent on the face of the record in finding the suit abated when substitution had been ordered on 19th May 2014 within the one-year period. The Court found this ground not frivolous and one that ought to be argued fully, applying the Kinyanjui v Ketter standard that a single arguable ground suffices.
Whether the intended appeal would be rendered nugatory if the orders are not granted
The appeal would be rendered nugatory if the suit property changes hands, as it would be lost and possibly transferred beyond the applicants' reach
The applicants averred that unless stay is granted the suit property is likely to change hands, rendering a successful appeal nugatory. The Court applied Raol Investments v Lake Credit Finance, where the danger of the respondent executing a transfer and passing the property to third parties justified preservation. The 1st respondent's completion of transfer and issuance of title reinforced the risk.
Legal principles established
#- To succeed on an application under rule 5(2)(b), an applicant must show an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted
- It is the filing of the Notice of Appeal that clothes the Court with jurisdiction to entertain a rule 5(2)(b) application
- A single arguable ground suffices for the first condition of rule 5(2)(b); certainty of success is not required
Court orders
#- 1.Injunctive orders restraining the respondents, their agents and/or servants from selling, disposing of, leasing or in any way interfering with L.R. No. Naivasha/Mwichiringiri Block 1/32 pending the hearing and determination of the intended appeal
- 2.An order of inhibition registered against L.R. No. Naivasha/Mwichingiri/Block1/32 pending hearing and determination of the intended appeal
- 3.Declined to set aside the orders declaring the suit as abated
- 4.If the appeal has not been filed, it must be filed within 45 days, failing which the injunctive orders automatically lapse
- 5.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court at Nairobi (Milimani High Court Commercial Courts)
- Milimani High Court Commercial Courts No. 254 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaburi & 2 others v Njuguna & 2 others", Case Analysis (2026). Civil Application E347 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1730/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.