Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E107 of 2026

CMW v RMK & 3 others

Court of Appeal
25 September 2026
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to pause a Nanyuki succession case, confirming Kenyan courts grant stays of proceedings only in rare, exceptional situations.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nakuru (Mativo, Kairaria and Hassan, JJA) on a notice of motion dated 9th July 2026 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking a stay of proceedings in Nanyuki High Court Succession Cause No. E007 of 2025 pending an intended appeal against a ruling of Ndung'u, J. dated 5th December 2025. The High Court had dismissed the applicant's application for DNA testing of himself and the second respondent to establish his paternity as a prerequisite to a dependency/inheritance claim against the estate of the late GGK, holding that singling out one child for testing was discriminatory and that the burden of establishing a nexus lay on the applicant. The Court of Appeal restated the twin Rule 5(2)(b) thresholds: an arguable appeal and nugatory value absent the order sought. On arguability, it noted the undisputed fact that the applicant had previously sued in Nyahururu HCC No. 35 of 2017 seeking DNA testing of the deceased's remains; that suit was dismissed on 1st July 2021 and never appealed. The Court was not persuaded the intended appeal was arguable. On the nugatory limb, it emphasised that stay of proceedings is a drastic, exceptional remedy requiring proof of irreversible, un-compensable consequences; the applicant still had a pending revocation-of-grant application before the trial court and a right of appeal from its outcome, and nothing suggested a successful appeal could not be compensated by damages. The application was dismissed with costs to the respondents. The High Court ruling itself was not disturbed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, absent a stay of proceedings, the intended appeal would be rendered nugatory

Key legal issues

#
01

Arguability of the intended appeal

Holding

The intended appeal was not arguable; the applicant had earlier litigated the same DNA issue in Nyahururu HCC No. 35 of 2017, which was dismissed and never appealed.

Reasoning

The court noted the undisputed fact that the applicant had previously sought DNA testing of the deceased's remains in a suit dismissed on 1st July 2021, and never appealed. Instead he filed the application that produced the impugned ruling. The court declined to make definitive findings at this stage but found the grounds did not persuade it that an arguable appeal existed.

p. 4
02

Nugatory value of the intended appeal

Holding

The applicant failed to show irreparable, un-compensable loss; he still has a pending revocation application and a right of appeal if it fails.

Reasoning

The court weighed the consequences of declining the stay. The applicant has a pending application for revocation of the grant before the trial court; if it fails he may appeal. Nothing suggested that a successful appeal could not be compensated by damages, so the nugatory limb was not satisfied.

p. 5
03

Threshold for stay of proceedings pending appeal

Holding

Stay of proceedings is granted only in exceptional circumstances; normal litigation hardships do not count and irreversible consequences must be shown.

Reasoning

Distinguishing stay of execution from stay of proceedings, the court held that courts are highly reluctant to pause an active trial. The applicant must prove markedly unusual circumstances in which proceeding without a stay would destroy the subject matter of the appeal, rendering any later victory useless.

p. 5

Legal principles established

#
  • To succeed under Rule 5(2)(b) an applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent the order sought.
  • Stay of proceedings is a drastic order granted only in exceptional cases with immense circumspection.
  • Whether an appeal will be rendered nugatory is a question of fact determined case by case, with no rigid formula.
  • An arguable appeal need only raise one bona fide issue worthy of consideration; it need not necessarily succeed.

Court orders

#
  1. 1.The notice of motion dated 9th July 2026 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

#

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

majority
majority
majority
On appeal from
High Court of Kenya at Nanyuki
Succ. Cause No. E007 of 2025 (Formerly Nyahururu Succ. Cause No. 28 of 2019)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

#

Stay of proceedings in Nanyuki High Court Succession Cause No. E007 of 2025 pending the hearing and final determination of the intended appeal

Applicant failed to satisfy the twin principles under Rule 5(2)(b): no arguable appeal demonstrated and no proof the appeal would be rendered nugatory

Costs

Dismissed with costs to the respondents

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.

It is settled law that to succeed in an application under Rule 5 (2) (b), an applicant must demonstrate that the appeal or intended appeal is arguable.
p. 4Rule 5(2)(b) threshold - arguability
Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection.
p. 4Stay of proceedings - exceptional remedy
Therefore, we find that the applicant has failed to satisfy the twin principles for grant of the orders sought pursuant to Rule 5 (2) (b). Accordingly, the notice of motion dated 9th July 2026 fails and is hereby dismissed with costs to the respondents.
Final orders - dismissal with costs

Issues in the judgment

#
minor

Heading describes the application as dated 5th December 2025 while the body deals with an application dated 9th July 2026

minor

Third respondent initials identical to first respondent (RMK listed twice)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "CMW v RMK & 3 others", Case Analysis (2026). Civil Application E107 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25

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