https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1241

Gitau v Njenga (Civil Application E496 of 2025) [2026] KECA 1241 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1241 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E496 of 2025 Katwa Kigen, JA July 3, 2026 Between Christine Njoki Gitau Applicant and Kelvin Kimani Njenga Respondent (Being an application for leave to appeal to the court of appeal against the judgment of the High Court of Kenya (family division) at Nairobi (P. Nyakundi, J.) dated 21st November 2024 in Succession Cause 14 of 2018) Ruling 1.The application before me is dated 21st August 2025 and is brought under Rule 5(2)(b) of the Court of Appeal Rules. Although the application is omnibus in nature, the prayer that I will consider as a single judge is that seeking leave to file the current application for stay of execution, it being a matter arising from a family division cause touching on matrimonial property. 2.A brief history of the matter is that the applicant, Christine Njoki Gitau, and the respondent, Kevin Kimani Njenga, were once husband and wife, having solemnized their marriage in 2007 and later dissolved the union in 2016. Following the dissolution, the respondent filed Milimani Family Division Civil Suit No. 14 of 2018, seeking division of matrimonial property. The learned judge, in a judgment delivered on 21st November, 2024, found that the respondent had a 50% beneficial interest in the properties registered in the name of the applicant, namely Plot Number 18 Roysambu III L.R No. 7959, Land Certificate No. 021151, and Ngong/Ngong/50977. 3.Dissatisfied with that decision, the applicant filed and served a Notice of Appeal and subsequently lodged a Record of Appeal dated 27th June 2025, challenging the said judgment. She also wrote to the High Court requesting certified copies of proceedings to enable preparation of the Memorandum of Appeal. The present application, therefore, seeks leave to appeal plus a prayer to stay execution of the judgment pending determination of the intended appeal, on the ground that unless a stay is granted, the respondent may proceed with execution, thereby depriving the applicant of her properties and rendering the appeal nugatory. 4.The application is grounded on the grounds on the face of the Notice of Motion and further supported by the affidavit of Christine Njoki Gitau sworn on 21st August 2025. In that affidavit, the applicant avers that her previous advocates failed to actively participate in the trial, resulting in a judgment being entered against her. She contends that the learned judge erred by failing to apply the principles set out in the Court of Appeal decision in Civil Appeal No. 128 of 2014 (PNN v ZWN), where Waki, JA. held that division of matrimonial property must be based on proof of contribution and that a 50:50 share is not automatic. She further depones that the respondent did not prove any contribution towards the acquisition of the properties, which were solely purchased and registered in her name. She maintains that she stands to suffer irreparable loss if execution proceeds, and that the application has been brought without delay and in the interest of justice. The application is opposed by the respondent through the replying affidavit dated 29th August,2025. 5.Having considered the application and the material placed before me, I note that the prayer for leave to file an appeal is now untenable in light of the recent pronouncement by the Supreme Court of Kenya in Eliud Mwendia Wandi v Kevin Wanjohi Muchira; Petition No. E029 of 2024 [2026] KESC 29 (KLR), delivered on 31st March, 2026, where the Court declared that the requirement for leave to appeal in succession matters is unconstitutional and inconsistent with Article 164(3) of the Constitution. The Supreme Court held that the right of appeal from the High Court to the Court of Appeal is automatic, unless expressly limited by a statute, and that the practice of requiring leave to appeal in succession causes was a judicial creation that unlawfully restricted access to justice. 6.I have looked at the pleadings filed by both parties and the written submissions. They do not specifically address the issue of leave to appeal, and much emphasis has instead been placed on the prayer for stay of execution. As such, given my jurisdiction as a single judge, I am only properly seized of the question of leave, which, in light of the Supreme Court’s pronouncement, no longer arises for determination. 7.In view of the foregoing, I find that the application, insofar as it seeks leave to file an appeal, is overtaken by events and does not need consideration and or orders. 8.In the situation, the parties, in consultation with the deputy registrar, can move the court in further progression of the appeal and related application. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.KATWA KIGEN K. J......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar