PRS v MWR

prays for an order staying any further proceedings in High Court Civil Case No. E001 of 2024 (O.S), pending the hearing and determination of his intended appeal. The applicant also prays for such other orders as this Court may deem just and costs of the application to abide the outcome of his intended appeal. The application is premised on Rule 5 (2) (b) of the Court of Appeal Rules, 2010 and Sections 3A of the Appellate Jurisdiction Act. Notably, the 2010 Rules were repealed and replaced with the Court of Appeal Rules, 2022. We do not comprehend why the applicant is invoking repealed rules. 4. In summation, in support of the application, the applicant faults the learned judge for: (a) misinterpreting Section 6 of the Matrimonial Property Act, 2013 by excluding properties acquired during the marriage, (b) granting equal distribution of the matrimonial property; (c) failing to appreciate the applicant’s submissions and authorities; (d) arriving at ndings which are not supported by the law; (e) in the event execution proceeds, his intended appeal will be rendered nugatory. 5. In reply to the application, the respondent led a replying adavit dated 14th August 2026, but the averments are silent on the prerequisites of a 5 (2) (b) application. 6. We heard this application on 21st September 2026. Mr. Odhiambo, Learned counsel appeared for the applicant, while learned counsel Mr. Omangi appeared for the respondent. Both parties adopted their written submissions. 7. The applicant’s submissions in support of the application are dated 21st August 2026. However, these submissions are premised on Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 which are inapplicable in proceedings before this Court. In a striking similarity, the authorities cited by the applicant’s counsel relate to applications heard and determined under the Civil Procedure Rules. Likewise, the respondent’s counsel’s submissions dated 4th September 2026 also address an application brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010. For example, the respondent counsel deployed a lot of energy arguing that an applicant is required to establish sucient cause, substantial loss and must furnish security, arguments which are inapplicable under Rule 5 (2) (b). 8. We are compelled to underscore that proceedings in the Court of Appeal are strictly governed by the Court of Appeal Rules, 2022, which are anchored under the Appellate Jurisdiction Act. (See Owino vs. Onyango & 2 Others (Civil Application E023 of 2026) [2026] KECA 863 (KLR) (30 April 2026) (Ruling)). The Civil Procedure Rules, 2010 (and the underlying Civil Procedure Act, Cap 21) govern civil litigation and appellate procedures in the subordinate courts and the High Court (such as appeals from a Magistrates' Court to the High Court). They do not apply to the Court of Appeal. Invoking the Civil Procedure Rules in a motion or application before the Court of Appeal is a procedural misstep which should be avoided. In the Court of Appeal, the bench views procedural compliance not merely as a matter of administrative preference but as a strict statutory threshold governing the very jurisdiction to hear a case. Therefore, mastery of appellate procedures is the ultimate boundary line that denes an eective advocate. Familiarity with the rules is an absolute shield against catastrophic pitfalls of litigation. 9. As mentioned earlier, the applicant invoked Rule 5 (2) (b) of the Court of Appeal Rules, 2010 which provisions are replicated in the Court of Appeal Rules, 2022. This rule provides that in any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 77, this Court may order a stay of execution, an injunction or a stay of any further proceedings on such terms as the court may think just. This Court has consistently ruled that the applicable principles and considerations are exactly the same, whether an applicant is seeking a stay of execution, a temporary injunction, or a stay of proceedings. 10. To succeed in an application under Rule 5 (2) (b), an applicant must demonstrate that the appeal is arguable. However, an "arguable appeal" is one that raises at least one bona de issue worthy of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2012/eng@2026-10-02 2

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consideration by the court, but, which may not necessarily succeed. In determining the question whether an appeal is arguable, this Court is constrained not to make denitive ndings of fact or law at this stage to avoid "embarrassing" the bench that will hear the appeal. As observed earlier, the applicant said nothing about the arguability of his intended appeal. Nevertheless, we have read the grounds urged in the draft memorandum of appeal. Whether or not the trial court misinterpreted Section 6 of the Matrimonial Property Act, 2013 is an arguable ground. Whether or not the learned judge excluded properties acquired during the marriage is also an arguable ground. The question whether the learned judge erred in granting equal distribution of the matrimonial property is also an arguable ground, just like the assertion that the applicant’s submissions and authorities were not considered. Lastly, whether the trial court’s ndings are supported by law is also an arguable ground. Alive of the fact that at this stage we are prohibited from making denitive ndings of fact or law, it will suce for us to say that the applicant has met this rst prerequisite. 11. However, as was held by this Court in Elior vs. Njoroge & 8 Others [2026] KECA 1209 (KLR), demonstrating that an appeal is arguable is only the rst step. The applicant must also satisfy the second limb of the test: proving that if the court does not grant the requested order (such as a stay of execution or an injunction), the ultimate success of the appeal will be rendered nugatory (useless, empty, or a mere academic exercise). As was held in Royal Media Services Limited & Another vs. Macharia Waiguru [2015] KECA 689 (KLR), whether an appeal will be rendered nugatory is a question of fact to be determined on a case- by-case basis. There is no mathematical or rigid formula. The court must look at the unique circumstances of each case. 12. In a long line of authoritative decisions, this Court has established specic elements and guidelines to determine whether an appeal will be rendered nugatory. In the seminal case of Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227, this Court dened the parameters of the term as follows: “ ‘Nugatory’ in its full meaning includes being rendered worthless, futile, and invalid, but it also means triing.” 13. A court must evaluate specic guiding considerations to ensure the appellant's right to an eective appellate remedy is not destroyed. The primary consideration is whether the action sought to be stayed can be undone if the appeal eventually succeeds. If the execution creates an irreversible situation, the appeal will be rendered nugatory. Examples of irreversible actions include the demolition of a building, the sale of unique land (res litigiosa) to a third party, or the completion of a commercial process that cannot be rolled back. (See Stanley Kang’ethe Kinyanjui vs. Tonny Keter & Others [2012] eKLR). 14. As was held in Sicpa Securities SolSa vs. Okiya Omtatah Okoiti & 2 Others [2018] KECA 613 (KLR), an appeal is only ruined if the consequences cannot be reversed or remedied later. The Court will evaluate whether the applicant can be reasonably compensated by an award of damages if the stay is denied but they win the appeal later. If damages are an adequate remedy, the appeal is not considered nugatory. However, if the loss is immeasurable or the opponent cannot pay, it satises the nugatory threshold. 15. If the appeal involves a monetary decree, the Court looks at the nancial status of the respondent. If the respondent is insolvent, a "shell company," or has no traceable assets within Kenya, paying out the decretal sum means the money is likely gone forever. This renders a subsequent appellate victory useless (nugatory). 16. The Court determines whether the core subject matter of the dispute will be completely destroyed or lost before the appeal is heard. If the "substratum" disappears, there is nothing left for the appellate court to adjudicate upon, rendering the exercise futile. (See Robert Mutiso Lelli vs. Kenya Medical https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2012/eng@2026-10-02 3

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Training College & 2 Others [2020] eKLR). This Court has repeatedly declared that what renders an appeal nugatory is not a xed mathematical formula; it depends strictly on the peculiar facts and circumstances of each individual case. The court balances the need to preserve the status quo against the consequences of delaying a successful litigant from enjoying the fruits of their judgment. (See Kihara vs. Ajele & 2 others (Civil Appeal E046 of 2021) [2021] KECA 104 (KLR) (22 October 2021) (Ruling)). 17. Turning to the facts of this case, other than stating in one of the grounds evidently in the context of Order 42 Rule 6 of the Civil Procedure Rules that the appeal will be rendered nugatory, the applicant did not attempt to expound how and why in the context of this case his appeal will be rendered nugatory. We have carefully examined the peculiar circumstances of this case and specically the orders sought to be appealed against. The trial court declared some properties to be matrimonial properties and ordered these properties to be shared equally. There was no attempt, even in the slightest manner to suggest that if implemented, this will be irreversible. Put simply, nothing was said before us to suggest that the properties once distributed will be disposed of or will be beyond the reach of the law should the appeal succeed or whether monetary compensation will be inadequate. The other order requires the applicant to render a full account of leases and rental income received. We do not see how such an order, if implemented will be rendered nugatory nor was there a suggestion to that eect. The applicant was ordered to remit half of the income to the respondent. Again, there was no attempt to demonstrate that it will be impossible to recover this money from the respondent if paid, nor was the exact amount disclosed. In other words, there was no single suggestion before us that there is a danger of the properties signicantly changing in a manner that will be irreversible or incapable of being compensated by way of damages. 18. The upshot of the foregoing is that the applicant has failed to satisfy the nugatory aspect. Accordingly, since it is a requirement that an applicant must satisfy both prerequisites, the application dated 3rd August 2026 is devoid of merit and it is hereby dismissed with no orders as to costs. Our reason for declining to award costs to the respondent is two-fold. One, the respondent basically fell into the same pitfall as the applicant and approached the application as if it was brought under the Civil Procedure Rules. Two, this is a family dispute and quite often courts are reluctant to impose costs in such cases. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ 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/2026/2012/eng@2026-10-02 4

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