THW v PNN

4. Aggrieved by that decision, the applicant lodged a Notice of Appeal and subsequently led the present application. She contends that the draft Memorandum of Appeal raises bona de and arguable issues, particularly whether the learned Judge erred in nding that the suit properties did not constitute matrimonial property. That she has occupied and utilized the properties for over twenty years, and unless execution is stayed, she risks eviction, rendering the intended appeal nugatory. 5. By a replying adavit sworn on 8th April 2026 in opposition to the application, the respondent deposes that although the applicant lodged a Notice of Appeal dated 5th December 2025, she failed to institute the appeal within sixty days as required under the Court of Appeal Rules and has neither sought, nor obtained extension of time. He therefore contends that the Notice of Appeal ought to be deemed as withdrawn since the trial court conclusively determined that the suit properties were not matrimonial property, and that the applicant will suer no prejudice upon eviction, since the properties lawfully belong to the respondent. 6. The applicant, through the rm of Mucheru Law LLP Advocates, led written submissions dated 14th April 2026, arguing that the application satises the threshold for the grant of an order of stay under rule 5(2)(b). It is contended that the application was led without delay, and that the applicant stands to suer substantial loss through eviction from the suit property she has occupied for over twenty years. That the respondent has already taken steps towards executing the judgment, by threatening to evict the applicant from the land. 7. According to the applicant, execution before the determination of the appeal would permanently alter the status quo and render the intended appeal nugatory. She submits that the intended appeal raises bona de arguable issues concerning the learned judge's determination that the disputed parcels did not constitute matrimonial property, and that she made no contribution towards their acquisition, and the consequent discharge of the cautions registered against the properties. 8. In support of the application, reliance is placed on the case of RWW v EKW [2019] eKLR, where the Court observed that the purpose of an order for stay of execution, is to preserve the subject matter of litigation so as to safeguard the appellant's right of appeal and ensure that a successful appeal is not rendered nugatory. The applicant also cites the case of Kibera & Another v Wainaina & 2 Others; Wainaina & Another (Interested Parties) [2022] KECA 143 (KLR), arguing that this Court has, in appropriate circumstances, granted interim relief where the respondent would suer no demonstrable prejudice. 9. Counsel submits that in the present case, maintaining the status quo pending the determination of the appeal would occasion no irreparable prejudice to the respondent, whereas refusal to grant stay would expose the applicant to eviction from the suit property and defeat the very purpose of the appeal. Accordingly, the applicant urges the Court to preserve the substratum of the appeal by granting an order of stay of execution pending the hearing and determination of the appeal. 10. The respondent did not le any submissions nor did he attend the Court during the hearing to advance his case. 11. The application came before the Court for plenary hearing on 28th April, 2026. Mr. Ogara, learned counsel, held brief for Mr. Sala for the applicant. He relied on the led submissions and reiterated that the applicant and not the respondent purchased parcel No. Gaturi/Weru/7842. Therefore, the respondent should not lay claim to the entire matrimonial home. Further, that Gaturi/Weru/8603 was transferred to settle a debt. 12. We have carefully considered the application, the adavits on record, the submissions of the applicant, the applicable law and the authorities cited. Before addressing the twin principles under rule 5(2)(b), https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1864/eng@2026-09-25 2

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there is a preliminary issue raised by the respondent regarding the competence of the intended appeal. It is contended that while the applicant lodged a Notice of Appeal on 5th December 2025, she failed to institute the appeal within the prescribed sixty days and has neither sought extension of time, nor oered any explanation for that default. 13. 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 has been obtained, the Notice of Appeal is liable to be deemed withdrawn under rule 85. In the case of Juma & 152 Others v Shah & 2 Others (Civil Application No. 1 of 2018) [2022] KECA 673 (KLR), this Court held that, where no appeal has been instituted within time, it has jurisdiction, either on its own motion or upon application, to deem the Notice of Appeal withdrawn. 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). 14. From the material before us, it is not disputed that the Notice of Appeal was lodged on 5th December 2025. There is, however, no evidence that the applicant instituted the appeal within the sixty-day period prescribed by the rules, or that the time for doing so was extended. The applicant has not oered any explanation for that omission. 15. In those circumstances, we nd merit in the respondent's preliminary objection. In the absence of a competent appeal, the jurisdiction of this Court under rule 5(2)(b) cannot properly be invoked. 16. Even if we were to assume that this Court is properly seized of jurisdiction under rule 5(2)(b), however, the Court must be satised on the requisite twin principles. Firstly, that the intended appeal is arguable and is not frivolous. It is settled that an arguable appeal is not one that must necessarily succeed. It suces if the intended appeal raises a single bona de arguable point worthy of consideration by the Court. Secondly, that if the orders sought are not granted, the appeal will be rendered nugatory should the appeal eventually succeed. (See Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] KECA 378 (KLR)). 17. In the application before us, we are not persuaded that the applicant has satised the rst limb under rule 5(2)(b). The impugned judgment demonstrates that the learned Judge undertook a detailed evaluation of the evidence before concluding that the applicant had failed to establish that the disputed parcels of land constituted matrimonial property. The court specically found that the applicant had neither proved monetary, nor non-monetary contribution towards the acquisition of the suit properties, and that the properties sought to be distributed had, in fact, been acquired before the marriage. On that basis, the learned judge correctly concluded that there was no legal or factual foundation upon which the properties could be apportioned as matrimonial property. 18. The learned judge took into account that parcel No. Gaturi/Weru/7842, acquired during the subsistence of the marriage, was registered in the applicant's name, and that the respondent had asserted no claim over it. The court also noted that following the subdivision of parcel No. Gaturi/ Weru/2107, the respondent voluntarily transferred parcel No. Gaturi/Weru/8603 to the applicant and executed the necessary transfer documents. Importantly, neither of those parcels formed part of the Originating Summons. The learned judge therefore concluded that the applicant had failed to establish any entitlement to the properties that were the subject of the suit and dismissed the Originating Summons for want of merit. 19. At this interlocutory stage, the applicant has not demonstrated that the learned judge acted on a wrong principle, misapprehended the applicable law, or overlooked material evidence in arriving at those ndings. Rather, the applicant invites this Court to revisit factual ndings made after a full hearing, which is a matter properly reserved for the substantive appeal. On the material before us, we are not https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1864/eng@2026-09-25 3

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satised that the intended appeal discloses a bona de arguable issue within the contemplation of rule 5(2)(b). 20. On the nugatory aspect, the applicant's principal apprehension is that she faces eviction following the discharge of the cautions registered against the suit properties. While we appreciate that eviction is a serious matter, the High Court expressly found that the applicant had failed to establish any benecial or proprietary interest in those parcels. Conversely, the applicant remains the registered proprietor of parcel No. Gaturi/Weru/7842 and the beneciary of parcel No. Gaturi/Weru/8603, which the respondent voluntarily transferred to her. In those circumstances, the prejudice alleged has not been shown to be so irreversible as to render the intended appeal nugatory. 21. As was stated in Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227, the Court must consider whether the consequences complained of are reversible or, if not, whether they may adequately be compensated by an appropriate remedy should the appeal ultimately succeed. The applicant has not discharged that burden. To the contrary, granting the orders sought would further delay the respondent's enjoyment of a judgment obtained after a full trial without sucient justication. 22. In the premise, and quite apart from the jurisdictional challenge founded on the incompetence of the Notice of Appeal, we nd that the applicant has not satised the two limbs of the test under rule 5(2) (b). Consequently, the Notice of Motion dated 22nd January 2026 is hereby dismissed. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026 MUMBI NGUGI ........................... JUDGE OF APPEAL L. ACHODE ………………..….. JUDGE OF APPEAL KATWA KIGEN ………………..….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1864/eng@2026-09-25 4

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