Kinoti v Nyegera (Suing on Behalf of the Estate of Gerishon Gatobu Mbui)

he has been in possession and use of the suit property, and that the respondent has threatened to evict him and destroy his crops. 3. The applicant stated that if the orders sought are not granted, the suit property could be transferred to third parties which would render his appeal nugatory. He asserted that his appeal raises arguable issues of law, and has high chance of success. It was his contention that the respondent never availed any evidence of payment of the purchase consideration, and that the purported sale transaction was illegal as it was done before conrmation of the grant. The applicant averred that he has lodged a suit against the respondent before the Environment and Land Court challenging his claim to the suit property. 4. The application was opposed. The respondent led a replying adavit dated 23rd February, 2024. The respondent contended that the applicant had not disclosed material facts in his application. She stated that the letters of administration in this case were initially issued to one Gerald Gitonga, the deceased’s son on 27th January, 2000. That the deceased’s estate comprised of mother parcel No. Nyaki/ Kithoka/984, of which the respondent’s husband had purchased a quarter acre piece. That vide a conrmed grant issued on 1st August 2002, the respondent’s husband was granted the said quarter acre parcel of land, which upon subdivision was registered as Nyaki/Kithoka/2817 (the suit property). The suit property was awaiting transfer to the respondent’s husband by the then administrator Gerald Gitonga. 5. The respondent averred that on 19th September, 2011, the applicant lodged an application before High Court seeking rectication/amendment of the conrmed grant, which distributed the suit property to the respondent’s husband. The application was however disallowed. She contended that the applicant did not challenge the said court order, until 11th April, 2023, when he led Meru ELC Case No. E007 of 2023. She averred that the applicant has been abusing the court process by ling endless applications. She urged that at the time of lodging this application, the applicant had lodged a similar application before the High Court seeking similar orders of stay, which application was still pending before the said court. 6. The application was canvassed by way of written submissions. Counsel for the applicant reiterated the averments made in the supporting adavit, in arguing that the applicant’s application had satised the twin principles under rule 5(2)(b) of the rules of this Court. 7. The respondent on the other hand urged that the applicant’s intended appeal seeks similar reliefs as his suit lodged before the Environment and Land Court in Meru ELC No. E007 of 2023. She further urged that the applicant has led a similar application to the present one before the probate court in Meru High Court Succession Cause No. 181 of 1999, seeking similar orders of stay of execution. She contended that by virtue of the history of litigation between the parties herein explained in her replying adavit, the applicant’s appeal was not arguable. 8. We have considered the application, the grounds in support thereof, the replying adavit, the submissions, the authorities cited and the law. The principles for granting an order for stay of execution under Rule 5(2)(b) of this Court’s rules are well settled. The applicant is required to establish twin principles: that his appeal is arguable; and that unless the reliefs sought are not granted, the applicant’s intended appeal, if successful, will be rendered nugatory. (See Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR.) 9. In the present application, the applicant seeks the twin reliefs of stay of execution and injunction. The applicant states that if either relief sought is not granted, by the time the appeal is heard, the suit property would have been transferred to third parties thus rendering the intended appeal nugatory. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1767/eng@2026-09-25 2

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On the other hand, the respondent is not convinced that the applicant’s intended appeal is arguable. She points out the fact, which is not challenged, that the applicant has led several similar applications before the probate Court and before the Environment and Land Court which are still pending hearing and determination. 10. To establish that he has an arguable appeal, the applicant states that he is the grandson of the deceased. He is challenging the decision of the probate Court to distribute the suit property to the respondent’s deceased husband on the grounds that there was no evidence that he ever paid valuable consideration for the suit parcel of land. This assertion is disputed by the respondent. We are persuaded that the applicant has an arguable appeal if he will be able to establish that the transmission of the suit property to the deceased husband was made without any consideration. This Court has held that an arguable appeal is not one that must necessarily succeed on appeal but one that should be given the benet of consideration by the Court. 11. As regards whether the applicant established that his intend appeal would be rendered nugatory if stay or injunction is declined, it is not in dispute that the respondent is in possession of the suit property. The property was transferred to the respondent’s deceased husband by transmission over two decades ago. The applicant is pursuing a multiplicity of applications before the Environment and Land Court and the probate Court with the aim of wresting back from the respondent the suit property. It was clear to us that the intended appeal will not be rendered nugatory because the applicant is yet to exhaust his litigation options before the superior Courts. The applicant can still obtain the orders he is seeking before this Court in the superior courts below. This Court is unimpressed by the applicant decision to pursue similar remedies before dierent Courts of dierent jurisdictions over the same subject matter. Such conduct unnecessarily clogs the justice system and may give an unwanted perception that the applicant is not pursuing the interest of justice but is forum shopping. Enough said. 12. It is clear from the foregoing that the applicant failed to establish the second limb of nugatory aspect and for that reason the application fails. It is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER,2026. W. KARANJA .......................... JUDGE OF APPEAL L. KIMARU ......................... JUDGE OF APPEAL A.O. MUCHELULE ......................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1767/eng@2026-09-25 3

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