THW v PNN
The bottom line
#The Court of Appeal refused to stop enforcement of a property judgment because the appeal was filed too late, so the case effectively ended.
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 Court has jurisdiction under rule 5(2)(b) where the Notice of Appeal was not instituted within sixty days and no extension of time was obtained
- 2.Whether the intended appeal is arguable and not frivolous
- 3.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Competence of the intended appeal as a precondition to rule 5(2)(b) jurisdiction
The Court lacks jurisdiction under rule 5(2)(b) where the Notice of Appeal was not instituted within sixty days and no extension of time was sought or obtained.
Rule 5(2)(b) jurisdiction depends on a competent Notice of Appeal. Where an appeal is not instituted within the prescribed period and no extension of time has been obtained, the Notice is deemed withdrawn under rule 85. The applicant lodged the Notice on 5th December 2025 but produced no evidence of institution within sixty days and offered no explanation for the omission.
Arguability of the intended appeal
The intended appeal was not arguable; the applicant merely invited the Court to revisit factual findings made after a full hearing.
The High Court undertook a detailed evaluation of the evidence, found no monetary or non-monetary contribution by the applicant, and found the properties were acquired before the marriage. At the interlocutory stage the applicant did not show the judge acted on a wrong principle, misapprehended the law, or overlooked material evidence.
Nugatory value of the intended appeal
The alleged prejudice (eviction) was not shown to be irreversible or non-compensable, so the appeal would not be rendered nugatory.
The High Court found the applicant had no beneficial or proprietary interest in the suit parcels, while she remained registered proprietor of Gaturi/Weru/7842 and beneficiary of Gaturi/Weru/8603 voluntarily transferred to her. Following Reliance Bank Ltd v Norlake Investments, reversible or compensable consequences do not render an appeal nugatory.
Legal principles established
#- Jurisdiction under rule 5(2)(b) is predicated upon the existence of a competent Notice of Appeal; where an appeal is not instituted within the prescribed period and no extension of time is obtained, the Notice of Appeal is liable to be deemed withdrawn under rule 85.
- Once a Notice of Appeal is deemed withdrawn, there remains no competent appeal upon which the Court may exercise jurisdiction under rule 5(2)(b).
- An arguable appeal need not necessarily succeed; it suffices if it raises a single bona fide arguable point, and the applicant must also show the appeal will be rendered nugatory.
Court orders
#- 1.The Notice of Motion dated 22nd January 2026 seeking stay of execution pending appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Embu
- HCFOS No. E003 of 2023
- Jurisdiction invoked
- Articles 159(2) and 164(3) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 5(2)(b) and 47 of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the High Court judgment and decree pending the hearing and determination of the intended appeal
No competent appeal existed as the Notice of Appeal was not instituted within sixty days; and in any event the twin principles under rule 5(2)(b) were not satisfied
Costs
No costs order is recorded in the ruling
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.
Jurisdiction under Rule 5(2)(b) is predicated upon the existence of a competent Notice of Appeal.
Once the Notice of Appeal is deemed withdrawn, there remains no competent appeal upon which the Court may exercise its jurisdiction under rule 5(2)(b).
It suffices if the intended appeal raises a single bona fide arguable point worthy of consideration by the Court.
Consequently, the Notice of Motion dated 22nd January 2026 is hereby dismissed.
Issues in the judgment
#Case number of the High Court suit appears inconsistently as 'HCFOS NO. E003 of 2023' and 'Embu HCFOS No. E00 of 2023' in the same ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "THW v PNN", Case Analysis (2026). Civil Application E010 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1864/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.