https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1635

Gimnyigei & another (Administrators in the matter of the Estate of Hannah Jebii Tum - Deceased) v Saina & another (Administrators in the matter of the Estate of Alfred Kipkorir Gimnyigei - Deceased) (Civil Application E047 of 2026) [2026] KECA 1635 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1635 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E047 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA July 31, 2026 Between Julia Gimnyigei 1st Applicant Esther Gimnyigei 2nd Applicant Administrators in the matter of the Estate of Hannah Jebii Tum - Deceased and Grace Jebet Saina 1st Respondent David Kimeli Leting 2nd Respondent Administrators in the matter of the Estate of Alfred Kipkorir Gimnyigei - Deceased (Being an application for an injunction and stay of execution of the ruling and the orders of the High Court at Eldoret (R. Nyakundi, J) delivered on 14th April, 2026 in Succession Cause No. E006 of 2022) Ruling 1.The application pending before us is a Notice of Motion dated 24th April 2026. It is expressed to be brought under Articles 10, 28, 40, 48, 50 and 164(3) of the Constitution of Kenya, 2010, Sections 3A and 3B of the Appellate Jurisdiction Act, Section 75(1) of the Civil Procedure Act, Rules 5(2) (b), 39(b), 41, 42 and 47 of the Court of Appeal Rules, 2022. The applicants seek the following reliefs; 1.That pending the hearing and determination of the intended appeal, there be a stay of execution of the Ruling and Orders of the High Court delivered on 14th April 2026. 2.That pending the hearing and determination of the intended appeal, there be an injunction restraining the Respondents, whether by themselves, their agents or servants from: Issuing or procuring the issuance of title deeds; Subdividing, transferring, alienating or otherwise dealing with Land Reference No. Eldoret Municipality Block 24 (Kipkenyo)/88 and/or its resultant subdivisions; Evicting or interfering with the Applicants’ possession of the said property. 3.That the costs of this application be in the appeal. 2.The application is based on the grounds on the face of the application and the supporting affidavit of the 1st applicant sworn on 24th April 2026. To put the application in context, we shall first give a background to the dispute, albeit in a summary way. The dispute arises from a Succession Cause for the estate of the late Hanna Jebii Tum. It is not disputed that the grant of confirmation in respect of the estate was issued on 26th January 2023. An application for the revocation of the grant was made on 11th October 2024, which was dismissed, and the applicants were directed to seek recourse in the Environment and Land Court. Subsequently, the applicants filed a suit in Eldoret ELC No. E064 of 2024, but it is not necessary to go into the details of that case as they are not relevant in this application. The record also shows that the applicants filed several applications in the Succession Cause and rulings were delivered on different dates as follows: 11th October 2024, 23rd December 2024, 6th October 2025 and 14th April 2026. It is common ground that the applicants have only filed a notice of appeal in respect of the ruling dated 14th April 2026, which is the subject of this application. 3.The ruling delivered on 14th April 2026 related to two applications. One sought leave to appeal against the ruling delivered on 6th November 2025 and a stay of execution of that ruling. The second application was dated 8th October 2025 seeking a prayer that the Land Registrar, Uasin Gishu County, be summoned to appear in court to show cause why she disobeyed a court order. It is not necessary to go into the details of the two applications; suffice that they were dismissed. Significantly, the learned Judge noted that the application for stay was res judicata and stated as follows:“..the doctrine of res judicata serves to prevent a multiplicity of suits, protect the integrity of judicial decisions and ensure finality to litigation. This court is therefore functus officio on the issues sought to be reopened. Further, the ruling of 6th October 2025 amounted to a negative order, dismissing the application for stay. It did not command any positive act capable of execution…” 4.The applicants, aggrieved by the ruling, filed a notice of appeal on 24th April 2026 and a memorandum of appeal of the same date raising 10 grounds. They argue that they have an arguable appeal that will be rendered nugatory absent stay. 5.The application is opposed. The 2nd respondent, David Kimeli Leting, swore a replying affidavit on 29th April 2026, contending that the application lacks merit and should be dismissed with costs. He deponed that the estate had been distributed pursuant to the confirmed grant of letters of administration intestate issued on 26th January 2023. He further stated that there is no appeal against either the confirmation of the grant or the ruling delivered on 11th October 2024 dismissing the application for revocation of the grant. He added that the judgment delivered on 26th January 2023 had already been implemented, the land subdivided, and the title cited in the application no longer exists. In a further affidavit sworn on 5th June 2026, the 2nd respondent stated that title deeds had been issued and that the beneficiaries were in possession of the suit land. 6.We heard the parties virtually on 8th June 2026. The applicants were represented by learned counsel Mr. Gichana, while the respondents were represented by learned counsel Mr. Momanyi. The parties relied on their written submissions, which were briefly highlighted. The applicants’ submissions are dated 29th May 2026, whereas the respondents’ submissions are dated 4th June 2026. 7.The applicants argue that the intended appeal raises substantial questions of law, namely: that the learned Judge erred by holding that the application was res judicata; that the court wrongly declined to exercise its powers but instead erroneously referred the dispute to the Environment and Land Court; and that the decision to refuse to grant stay of execution was wrong. 8.On whether the appeal would be rendered nugatory, the applicants urged that they are in possession of the suit land. They further argued that if new titles are issued, and third-party interests created, the substratum of the appeal will be destroyed and damages would not be an adequate remedy in the circumstances. 9.The respondents, on their part, pointed out that the appeal arises from the court’s refusal to stay execution of the certificate of confirmation of grant issued in Eldoret High Court Succession Cause No. E006 of 2022. They argued that the intended appeal is not arguable as the applicants had not appealed against the previous rulings dated 11th October 2024 and 6th November 2025 relating to the estate. 10.On the nugatory aspect, the respondent submitted that the appeal has been overtaken by events as the grant of letters of administration had been enforced and the land had been subdivided and title deeds issued. Therefore, the title that is cited ceased to exist in 2023. They urged the Court to dismiss the application with costs to the respondents. 11.The jurisdiction of this Court in applications under rule 5 (2) (b) is original, discretionary, and unfettered, though it must be exercised judicially and in the interests of justice. In Stanley Kang’ethe Kinyanjui vs Tony Keter & 5 Others [2013] eKLR, this Court stated:“The applicant must satisfy both limbs: first, that the appeal is arguable, and second, that the appeal will be rendered nugatory if stay is not granted. An arguable appeal is not one that must necessarily succeed, but one that raises a bona fide point worthy of consideration. The nugatory aspect considers whether, if stay is not granted, the appeal will be rendered worthless, futile, or incapable of being reversed, or whether damages would reasonably compensate the aggrieved party.” 12.As stated, the ruling dated 14th April 2026 dealt with two applications, both of which the learned Judge dismissed. This Court has held in several decisions that a negative order cannot be stayed because it does not require any positive act to be done. In Western College of Arts and Applied Sciences vs Oranga & Others (1976-80) 1 KLR, this Court stated as follows:“But what is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a church to make a payment out of that fund. In the instant case, the High Court has not ordered any parties to do anything, or to refrain from doing anything, or to pay any sum.” 13.It follows that, in the circumstances, prayer 1 of the application seeking stay of execution is a non-starter. However, we note that the applicant also sought an order of injunction. The order of injunction sought being one brought under rule 5 (2) (b) would, like the prayer for stay of execution, have to pass the twin test of demonstrating an arguable appeal, and that the appeal would be rendered nugatory if the order sought is not granted. 14.As to the arguability of the appeal, a perusal of the draft memorandum of appeal reveals that the applicant has raised the question whether the court erred in applying the doctrine of res judicata and on the limits of the jurisdiction of the High Court and the Environment and Land Court. At this stage, we are only required to be satisfied that at least one ground is arguable. It is also trite that an arguable ground must not necessarily succeed. (See Cabinet Secretary, Ministry of Health vs. Aura & 13 Others (Civil Appeal (Application) E565 of 2024) [2024] KECA 1195 (KLR). We are satisfied that the grounds are arguable but as to whether they will succeed, we leave that to the bench that will hear and determine the appeal. 15.As to whether the appeal would be rendered nugatory, we take notice of the fact that the distribution of the estate has already been undertaken, and title deeds issued to the beneficiaries, and that Land Reference No. Eldoret Municipality Block 24 (Kipkenyo)/88 no longer exists. The respondents filed a further affidavit sworn on 5th June 2026 annexing copies of the titles. The contents of that affidavit are not seriously disputed by the applicants. Clearly, the application has been overtaken by events. A court of law cannot act in vain. We also hasten to add that in the circumstances of this application and considering the ruling that the applicants are appealing against, the intended appeal cannot be rendered nugatory. 16.In conclusion, the applicants have failed to satisfy the second principle, whether the intended appeal will be rendered nugatory. Accordingly, the application is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. M. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR