https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1628

BOO v GGN (Civil Application E174 of 2025) [2026] KECA 1628 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1628 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E174 of 2025 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between BOO Applicant and GGN Respondent (Being an application for stay of execution arising from the judgment and decree of the High Court of Kenya at Kisii (Odera, J.) dated 4th November, 2025 in Matrimonial Cause No. E001 of 2004) Ruling 1.The Notice of Motion before us is dated 19th December 2025. It is brought pursuant to Rule 5(2)(b) of the Court of Appeal Rules. In the motion, the applicant seeks in the main, a stay of execution of the judgment and decree of the High Court of Kenya at Kisii delivered on 4th November 2025 pending the hearing and determination of the intended appeal. 2.The application is premised on the grounds on its face and those contained in the supporting affidavit of the applicant. To wit, that he was aggrieved by the judgment and decree of the High Court which declared various immovable properties, motor vehicles and corporate interests associated with him to be matrimonial property and directed that they be shared in the ratio of 70:30; that his intended appeal raises bona fide and arguable issues of law and fact, including whether the respondent discharged the burden of proving contribution under the Matrimonial Property Act; whether post-divorce properties and assets registered in the names of third parties and corporate entities can properly be treated as matrimonial property. 3.He further asserts that the respondent had already signaled intention to execute the decree, which would result in valuation, subdivision, transfer of some of the properties, which will create third-party rights thereby irreversibly altering the substratum of the appeal, rendering the intended appeal nugatory. He maintains that the application has been brought promptly and he is willing to abide by reasonable conditions that may be imposed by the court in allowing the application. 4.We were however unable to see any papers filed in opposition to the application by the respondent though, her counsel subsequently filed written submissions in response to the application. 5.When the application came up for plenary hearing, only Mr. Farrah, learned counsel for the applicant appeared. The respondent was not present nor represented by counsel despite evidence of service on her of the hearing notice by the court. 6.In urging the application, counsel for the applicant submitted that the applicant had satisfied the threshold required for the grant of the prayers sought, and as set out in Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR. 7.On arguability, counsel submitted that the Memorandum of Appeal raised weighty questions of law and fact, some of which we have already pointed out elsewhere in this Ruling and we need not therefore rehash. 8.Similarly, on the nugatory aspect, counsel merely reiterated what the applicant had deponed to in his affidavit in support of the application and which again has been reverted to elsewhere in this Ruling. Suffice that he relied on Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 (CAK) to argue that damages would not constitute an adequate remedy where the subject matter is likely to be disposed of or irreversibly altered. 9.The respondent, in opposing the application, submitted that the Notice of Motion was misconceived, legally untenable and amounts to an abuse of the court process. She contended that the applicant had failed to demonstrate any exceptional or compelling circumstances warranting urgent intervention by this Court, and that the application was a deliberate attempt to deny her the fruits of a lawful judgment after protracted litigation. That the applicant had not satisfied the twin principles required in applications of this nature as the intended appeal did not raise any bona fide or arguable grounds deserving appellate interrogation. That the issues regarding contribution under the Matrimonial Property Act and ownership through corporate entities, were fully canvassed and conclusively determined by the trial court. She relied on Stanley Kang’ethe Kinyanjui v Tony Ketter & Others (supra) and Nguruman Limited v Jan Bonde Nielsen [2014] eKLR to emphasize that arguability is a mandatory threshold, which the applicant had failed to meet. 10.On the nugatory limb, the respondent submitted that the applicant had failed to demonstrate that aspect. She argued that the properties are identifiable, capable of valuation and redistribution, and that the applicant had not shown that she was incapable of refunding or restoring any benefit she would have otherwise received should the appeal succeed. That granting the order sought would in the circumstances perpetuate injustice, encourage appeals merely to delay enforcement, and undermine the authority of the Court. 11.We have considered the application, the respective submissions, authorities cited and the law. The law governing applications under Rule 5(2)(b) of the Court of Appeal Rules, is well settled. For the applicant to succeed he must, firstly, demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same thing as saying that the appeal is not frivolous. Such an applicant must, in addition demonstrate that the appeal would be rendered nugatory absent prayers sought in the application. See Stanley Kang’ethe Kinyanjui v. Tony Ketter & Others (supra). 12.On arguability, the applicant contends that the trial Court erred in presuming contribution from the mere fact of marriage, contrary to Echaria v Echaria [2007] eKLR and TKM v SMW [2020] eKLR, which require specific proof of contribution; challenges the inclusion of post- divorce assets and those registered in the names of companies and third parties as matrimonial property, raising questions on the doctrine of separate legal personality established in Salomon v Salomon & Co. Ltd [1897] AC 22, the imposition of a global sharing ratio of 70:30 without asset-by-asset analysis, contrary to PNN v ZWN [2017] eKLR. These grounds in our view are not frivolous and warrant further appellate interrogation. Accordingly, the first limb is satisfied. 13.On the nugatory limb, the applicant asserts that unless stay sought is granted, the respondent will proceed with valuation, subdivision, transfer and sale of the properties, thereby creating third-party rights and irreversibly altering the substratum of the appeal. He relies on Reliance Bank Ltd v Norlake Investments Ltd (supra), where the Court held that damages may not constitute adequate remedy where the subject matter is likely to be disposed of or irreversibly altered. The respondent counters that the properties are identifiable, capable of valuation and redistribution, and that she is not incapable of refunding or restoring any benefit should the appeal succeed. However, given the nature of immovable properties and corporate interests involved, once transferred or sold to third parties, restoration to the status quo ante would be practically impossible. The risk of irreversibility is real and substantial, and the appeal would be reduced to an academic exercise if execution proceeds. The Court is therefore persuaded that the second limb is also satisfied. 14.The application is accordingly allowed in terms of prayers 3, with costs to abide the outcome of the appeal. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIK-MAKHANDIA…………………………………JUDGE OF APPEALE.C. MWITA…………………………………JUDGE OF APPEALB. ONGAYA…………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR