Lilian Akeyo Onyango alias Lilian Omoro v Peter Ojwang & 3 others

3. Following the eviction, the respondents led Environment & Land Case No. 53 of 2019 against the applicant seeking, inter alia, an order compelling the applicant to re-open the premises and unconditionally reinstate them; an injunction restraining the applicant from interfering with their quiet enjoyment and commercial trade; special damages totaling Kshs. 638,000 (for conscated cash and tools of trade) and Kshs. 5,520,000 (for 16 months of lost prots up to April 2008) and general damages for unlawful eviction. 4. On 25th January 2024, O.A. Angote, J. entered judgment against the applicant for Kshs. 3,000,000 in general damages, costs, and interest. 5. The applicant sought a stay of execution at the trial court but was ordered to deposit the full Kshs. 3,000,000 into an interest- earning account within 60 days. Dissatised with this demanding condition, she led this application before the expiry of the 60 days. 6. The application is premised on the grounds on its face and the supporting adavit of Lilian Akeyo Onyango dated 22nd February 2025. Lilian depones that she was wrongfully sued. She maintained that the premises, L.R No. 2029/8554/3 in Kariobangi North belonged to her deceased father, Reuben Onyango Omolo and she has never held Letters of Administration in respect to her late father’s estate. Legally, she argues, she had no power under Section 82 of the Law of Succession Act to represent the estate or be sued for an eviction that occurred there. 7. She deposes that the respondents have already issued a Notice to Show Cause why her immovable property should not be attached. She points out that the respondents, former tenants of the bar/hotel business, vacated the area years ago, and their current whereabouts and nancial means are unknown and completely untraceable. If they attach her property and enforce the Kshs. 3,000,000 decree, she will never recover the funds even if she wins her main appeal later. 8. The application is opposed through the replying adavit of David Omondi Awuor sworn on 5th May 2025. It is deponed that the application is completely without merit; purely dilatory; intended to cause delay, and a blatant abuse of court procedures to prevent them from enjoying the fruits of their judgment. 9. It is deponed that there is no irreparable loss because the judgment is for a liquidated sum of Kshs. 3,000,000, and that the money is fully recoverable and capable of restitution if the appeal succeeds. That no evidence was presented showing the respondents would be unable to pay it back. 10. According to the respondent, the trial court had previously granted the applicant a conditional stay of execution requiring that she deposits the Kshs. 3,000,000 into a joint interest-earning account within 60 days and because she failed to comply, that original stay lapsed, making her undeserving of further leniency. 11. Further, that the respondent’s application to commit the applicant to civil jail is a lawful enforcement mechanism resulting entirely from her refusal and neglect to honor the court decree. 12. The applicant, through the rm of Nguandaru Thuita & Co Advocates, in the submissions dated 9th May 2025 submits that her pending appeal (Civil Appeal E221 of 2024) is arguable and not frivolous. Her primary defense is her locus standi. She was sued as the daughter of the deceased’s property owner, Reuben Onyango Omolo, but she contends she was never legally appointed as the Administratrix of his estate. Therefore, she claims she lacked the legal power under Section 82 of the Law of Succession Act to be sued on behalf of the estate. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1732/eng@2026-09-25 2

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13. As to whether the appeal will be rendered nugatory, the applicant contends that if the court does not halt the execution, the appeal will be rendered nugatory as the respondents have already initiated execution procedures to seize and attach her immovable property. Furthermore, because the respondents vacated the premises years ago, their whereabouts and nancial means are entirely unknown and if she pays them the Kshs. 3,000,000 and wins her appeal later, she will may never recover her money. 14. The applicant, in support of her application, relies on the cases of Stanley Kang’ethe Kinyanjui -vsTony Ketter & 5 Others [2013] eKLR regarding discretionary remedies under Rule 5(2)(b) of the Court of Appeal Rules. The applicant also relies on that decision to establish that the Court of Appeal possesses original, wide, and unfettered discretionary jurisdiction to grant a stay of execution, stay of proceedings, or injunction, provided it is just to do so. 15. The applicant also cited the case of James Titus Kisia -vs- Said Majid Said [2015] eKLR for the proposition that an appeal will be rendered nugatory based on two sub-factors: Whether the expected nancial or property damage will be fully reversible if the nal appeal is successful and if unreversible, whether monetary damages would reasonably compensate the aggrieved party. The applicant uses this to argue that her loss and damage are not reversible and cannot be compensated. 16. We are urged to allow the application as prayed. 17. The respondents, through Odhiambo Oronga & Co Advocates, in their submissions dated 8th May 2025 submit that there is no arguable appeal as the applicant has raised no bona de legal or factual errors from the trial court’s judgment and that mere dissatisfaction with a ruling does not fulll the threshold of an arguable appeal. 18. Further, it is submitted that the appeal will not be rendered nugatory as the decretal sum is a specic amount and the applicant has failed to provide any evidence showing that the respondents would be unable to refund the Kshs. 3,000,000 if her appeal eventually succeeds. The respondents rely on Stanley Kang’ethe Kinyanjui -vs- Tony Ketter & 5 Others [supra] and Co-operative Bank of Kenya Ltd -vsBanking Insurance & Finance Union (Kenya) [2015] eKLR. 19. The respondents also place reliance on Maunge and another -vs- Moses (Miscellaneous E017 of 2021) [2023] KEELC 21520 (KLR) which establishes that ling multiple applications over the exact same issue while a previous application is still pending in the lower court amounts to an abuse of court process. 20. We are urged to dismiss the application with costs to the respondents. 21. When the application came up for hearing on 24th June 2025, learned counsel, Mr. Guandaru Thuita appeared for the applicant while Mr. Oronge appeared for the respondents. They both adopted their submissions and make brief oral highlights. Mr. Guandaru reiterated that the issue of locus standi on the part of the applicant was arguable, and that if the money was paid, it would not be possible to recover it from the respondents, hence satisfying the nugatory aspect. 22. On his part, Mr. Oronge maintained that the application was an abuse of the court process, a similar application having been heard and conditionally allowed by the trial court and further that the appeal was not arguable. Counsel posited that the applicant was the one who was collecting rent from the premises, and she cannot turn round and say she is not the admistratrix to the deceased’s estate. 23. We have considered the application, the written and oral submissions by both parties and the relevant law. For the applicant to succeed under Rule 5(2)(b), the applicant must satisfy the two twin principles on arguability and the nugatory aspect. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1732/eng@2026-09-25 3

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24. On arguability, the applicant argues that she was wrongfully sued because she is merely the daughter of the deceased property owner, Reuben Onyango Omolo, and does not hold Letters of Administration. She relies on Section 82 of the Law of Succession Act to argue that she had no legal capacity to be sued. 25. Conversely, the record indicates that the applicant personally carried out the forcible eviction of the respondents on 5th December 2006. A claim in tort for unlawful eviction attaches to the individual who committed the wrongful act, regardless of property ownership status. It was in that capacity that she was sued. As submitted by the respondents, the applicant cannot collect rent and enjoy other benets from the estate when it is convenient for her, but when it comes to accountability, or when it is not to her advantage, hide behind Section 82 of the Law of Succession Act and assert that she is not the administratrix to the property. We are not persuaded on the arguability of that ground. 26. On the question of abuse of the court process, we observe that the applicant had led a similar application before the trial court and the same was allowed on condition the that the decretal amount be deposited in an interest earning account within 60 days. However, instead of complying, and while those orders were still in place, she moved to this court seeking similar orders. That in our view, amounts to abuse of the court process which cannot be countenanced. 27. The twin principles on arguability and nugatory aspect are conjunctive and, therefore, failure to prove one renders the application a suitable candidate for dismissal. Having failed to satisfy the limb on arguability, we do not need to consider whether the appeal will be rendered nugatory, absent stay. Accordingly, the Notice of Motion dated 28th February 2025 is without merit and the same is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026. W. KARANJA ......................JUDGE OF APPEAL K. M’INOTI.......................JUDGE OF APPEAL JOEL NGUGI........................JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1732/eng@2026-09-25 4

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