Irowa & 2 others v Karuku & another (Civil Appeal (Application) E025 of 2026) [2026] KECA 917 (KLR) (15 May 2026) (Ruling)

Irowa & 2 others v Karuku & another (Civil Appeal (Application) E025 of 2026) [2026] KECA 917 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 917 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E025 of 2026 JM Mativo, MB Kairaria & AI Hassan, JJA May 15, 2026 Between Patrick Irowa 1st Applicant Agnes Nyambura 2nd Applicant Nancy Njoki 3rd Applicant and Benson Wathiai Karuku 1st Respondent Hellen Wangari Karuku 2nd Respondent (An application for stay of execution pending appeal from the Ruling and Order of the High Court of Kenya at Nakuru (H.I. Ong’undi, J.) dated 16th December 2025) in Succession Cause No. 7 of 2010) Ruling Background 1.Before us is a Notice of Motion dated 16th February 2026 in which Patrick Irowa, Agnes Nyambura and Nancy Njoki (the applicants) who are the administrators of the estate of the deceased seek an order for stay of execution pending appeal of the ruling and order of the High Court at Nakuru(H.I. Ong’undi, J.) dated 16th December 2025. The application is brought under Rule 5(2) (b) of the Court of Appeal Rules (this Court’s Rules). Benson Wathiai Karuku and Hellen Wangari Karuku are the respondents herein. They are the grandchildren of the deceased. 2.It was the applicants’ case that the intended appeal demonstrates a prima facie arguable case with probability of success as the ruling dated 16th December 2025 misinterprets Sections 29, 35, 38 and 40 of the Law of Succession Act; that irreparable damage will ensue without stay as the matrimonial home’s transfer or exclusive control would destroy its status as family heritage and that the balance of convenience overwhelmingly favours the applicants, as a stay merely preserves the pre-ruling status quo of shared family access while refusal risks disproportionate harm to the larger family unit. 3.The 1st respondent opposes the application vide his replying affidavit sworn on 21st April 2026 where he depones inter alia that; the appeal would not be rendered nugatory in the event that it succeeds because the stay of transfer of title herein sought would be reversible; that the applicants have failed to disclose to this Honourable court that they, as administrators flagrantly flouted the status quo order by the high court by subdividing the parcel consisting of the deceased’s home; that the applicants have thus approached this court with unclean hands and have not demonstrated what loss they stand to suffer if stay is not granted. That the orders sought are discretionary, and the applicants have failed to demonstrate grounds that warrant the exercise of such discretion in their favour. Submissions 4.The application was heard by way of written submissions. The applicants submitted that pursuant to a partial Consent recorded on 30th July 2025, the parties resolved most issues amicably, leaving only two outstanding issues for judicial determination:(i)whether the Respondents qualify as direct beneficiaries under Section 29 of the Law of Succession Act or they inherit per stripes through their late father and(ii)whether the matrimonial home should be awarded to the Respondents or held in trust for the entire family to preserve equity and harmony in the family.The judge ruled in favour of the respondents, holding them as direct beneficiaries entitled to equal shares as surviving children of the Deceased and granting them absolute ownership of the matrimonial home at Section 58, thereby setting aside the per stirps distribution and rejecting the proposed family trust, which forms the basis of the intended appeal. 5.The appellants submitted that they have an arguable appeal with a high probability of success and that their draft memorandum of appeal raises arguable grounds inter alia: that the learned Judge erred in law by misapplying Section 29 of the Law of Succession Act to make respondents qualify as direct beneficiaries based on unsubstantiated dependency claims. It was further submitted that the ruling failed to apply the per stirpes principle, which requires grandchildren of a predeceased to take substitutive the share their parent would have received, rather than as direct beneficiaries entitled to a separate equal share, thereby diluting the shares of the deceased’s surviving direct children (including the applicants). The applicants cited the matter of Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR (Civil Application No. Nai. 31 of 2012) to buttress the point that an appeal is arguable if it raises bona fide issues of law that are not frivolous, such as misinterpretation of statutory provisions, as is in this case. 6.On the nugatory aspect, the applicants contended that without a stay, the respondents may proceed to execute the ruling by taking absolute possession and potentially alienating or disposing of the matrimonial home at Section 58, which forms a core part of the estate. That this would cause irreparable prejudice to the applicants, as the property holds sentimental, cultural, and economic value as family heritage, and its loss or transfer to third parties would render any successful appeal nugatory, leaving the applicants without an effective remedy. 7.The 1st respondent contended that the orders sought to be stayed are reversible should the appeal succeed. It’s his further contention that the applicants have failed to demonstrate any irreparable harm or exceptional circumstances that would justify the intervention of this Honourable court. 8.The 1st respondent further invited the court to consider the conduct of the applicants herein. It is argued that the stay orders sought are equitable in nature and must not be granted to a person with unclean hands. That the applicants have failed to comply with the High Court’s order of status quo and have excised a portion of the deceased’s home and erected permanent structures. 9.In conclusion, the 1st respondent submitted that the applicants have failed to demonstrate any irreparable harm to be suffered if stay was not granted. Determination 10.We have considered the application, the grounds in support thereof, the submissions, the authorities cited, and the law. The jurisdiction under Rule 5(2)(b) of this Court’s Rules is discretionary and guided by the interests of justice. In the exercise of this discretion, the Court must be satisfied on the twin principles, which are that the appeal is arguable and that if the orders sought are not granted and the appeal succeeds, the appeal will be rendered nugatory. In their written submissions dated 21 April 2026, the respondent concedes that the appeal is arguable but states that the appellants have not satisfied the nugatory aspect of the stay order. 11.The principles for granting a stay of execution, injunction or stay of proceedings under Rule 5(2)(b) of this Court’s Rules are well settled as was observed by this Court in the case of Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR where the Court delineated the jurisdiction of this Court in such an application as follows:The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary, and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 12.In considering the twin principles set out above, we are cognizant that to benefit from the discretion of this Court, both limbs must be demonstrated to the Court’s satisfaction. See:Republic v Kenya Anti-Corruption Commission & 2 others (2009) KLR 31, and Reliance Bank Ltd v Norlake Investments Limited (2012) 1 EA 227. 13.On the first principle, as to whether or not the appeal is arguable, we have to consider whether there is a single bona fide arguable ground that has been raised by the applicants to warrant ventilation before this Court. See Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR (Civil Application No. Nai. 31 of 2012) where this Court described an arguable appeal in the following terms:“vii).An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.viii).In considering an application brought under Rule 5 (2) (b), the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.” 14.We have carefully considered the grounds set out in the motion and the annexed draft memorandum of appeal. In our view, it is arguable inter alia whether the learned judge erred in law by holding that the respondents qualified as direct beneficiaries of the deceased’s estate under Section 29 of the Law of Succession Act. An arguable point is not necessarily one that must succeed, but merely one that is deserving of consideration by the Court. Without saying more lest we digress into the merits of the appeal, we are satisfied that the appeal is arguable. 15.On the nugatory aspect, this Court in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra), stated that:“ix).The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile, or invalid. It also means trifling.x).Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved.” 16.In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties, and each case has to be determined on its merits. In the instant application, the applicants’ main contention is that without a stay order, the respondents will seek to enforce their absolute right to the matrimonial home, including applying for confirmation of grant, transfer of title, eviction of other family members, and exclusive possession. That in the event that the appeal succeeds, the property cannot be restored post- execution. 17.We are satisfied that denial of the orders sought would occasion irreparable prejudice to the applicants. The suit property is imbued with sentimental, cultural, and economic value as family heritage. Its alienation to third parties would irreversibly erode that heritage, rendering any eventual success on appeal nugatory. Monetary compensation cannot adequately redress such loss, for the property’s unique sentimental and cultural significance transcends pecuniary valuation. In Reliance Bank Ltd v Norlake Investments Ltd [2002] E.A. 227, this Court stated:“To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.” (Emphasis supplied). 18.We are mindful of the 1st respondent’s contention that the applicants have approached this Court with unclean hands, having allegedly flouted the High Court’s order of status quo by subdividing the parcel comprising the deceased’s home and erecting permanent structures. A party that seeks an equitable remedy must show themselves to be worthy of such a remedy. In Eric Makokha & 4 others v Lawrence Sagini & 2 Others [1994] eKLR, this Court reiterated that an application under rule 5(2)(b) invokes the equitable jurisdiction of the Court and therefore grant of a remedy under that rule must be based on principles established by equity. And in David Kamau Gakuru v. National Industrial Credit Bank Ltd., CA No. 84 of 2021, the Court affirmed that an equitable remedy cannot be granted to a party who has demonstrated openly by his conduct that he is undeserving of the equitable relief. 19.However, in the present case, the 1st respondent has failed to place before this Court any cogent evidence to substantiate the allegations regarding the applicants’ conduct. In the absence of such evidence, this Court is unable to confirm the accuracy of the allegations 20.In the circumstances of the instant application, we are persuaded that the applicants have demonstrated an arguable appeal which will be rendered nugatory, absent stay. 21.In the circumstances, the applicants have satisfied both limbs of the requirements under Rule 5(2)(b) of this Court’s Rules. The upshot is that the Notice of Motion dated 16th February 2026 is allowed. Costs shall abide by the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 15TH DAY OF MAY, 2026.J. MATIVO..................................JUDGE OF APPEALMURUNGI B. KAIRARIA..................................JUDGE OF APPEALAHMED ISSACK.................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR