https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1418

Kimeto v Wadawi & another (Civil Application E078 of 2026) [2026] KECA 1418 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1418 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E078 of 2026 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Janet Chepngeno Kimeto Applicant and Nelly Awino Wadawi 1st Respondent Alex Odhiambo Awiti 2nd Respondent (Being an application for injunction from the Ruling and Order of the High Court of Kenya at Nairobi (Riechi, J.) dated 23rd August, 2024 in H.C SUCC Cause No. 1685 of 2016) Ruling 1.Before us is an application filed pursuant to Article 159 of the Constitution of Kenya, Sections 3A and 3B of the Appellate Jurisdiction Act, Rule 5(2)(b) of the Court of Appeal Rules, and all other enabling provisions of the law. The application seeks in the main, an order of injunction against the respondents in respect of the distribution, occupation, and possession of the assets forming part of the estate of the late Joseph Abok Kibuye Wadawi, “the deceased”, pending the hearing and determination of an intended appeal. 2.The application is premised upon grounds that the applicant had filed Summons for Revocation of the Grant of Letters of Administration intestate issued to the respondents in respect of the estate of the deceased. In the same application, the applicant had also sought urgent restraining orders against the respondents from dealing with the estate of the deceased, recognition of herself and her children as dependents of the deceased and the rendering of accounts regarding the administration of the estate of the deceased. Upon plenary hearing of the application and by a ruling delivered on 23rd August 2024, the trial court dismissed the application in its entirety. 3.The applicant contends that among the properties forming part of the estate of the deceased is L.R. Kisumu Municipality/Block 12/457/B3, “the suit property”, which she and her children occupy as their matrimonial home. She was put in possession by the deceased long before he passed on. That the respondents had since the aforesaid ruling filed a suit in the Chief Magistrate’s Court at Kisumu seeking her eviction from the suit property as well as mesne profits. The suit is set for further hearing on 27th July 2026. She maintains that unless the injunction prayed for is granted, her appeal will be rendered nugatory, as she stands to suffer irreparable harm once evicted, while the respondents will not suffer such prejudice if the prayer is granted. She asserts that her intended appeal raises serious and arguable grounds with high chances of success, and that the application has been made without undue delay. 4.The application is opposed by the respondents through a replying affidavit sworn by the 1st respondent wherein she deposes that the application is fatally defective, incompetent, and an abuse of the court process. She recounts that the trial court dismissed the applicant’s Summons for Revocation of Grant after finding that she was not a spouse and the alleged children were not dependents of the deceased. She contends that the present application is a dishonest attempt to revive an abandoned cause, amounting to forum shopping and that she is guilty of material non-disclosure. Besides, no valid Notice of Appeal was filed by the applicant and served on the respondents as required so as to grant jurisdiction to this Court under Rule 5(2)(b) of the Court of Appeal Rules to entertain this application. She further argues that reliance on Article 159 of the Constitution cannot cure substantive jurisdictional defects or abuse of court process. 5.When the application was called out for plenary hearing, the applicant was represented by, Mr. Onsongo, learned counsel, whereas the respondents appeared through Ms. Awuor who was holding brief for Mr. Masongo, learned counsel. The application was canvassed by way of written submissions with limited oral highlights. Mr. Onsongo submitted that the intended appeal was arguable as it raises weighty questions of law and fact, particularly with regard to the trial Court’s finding that the applicant was not a wife to the deceased and that her children were not his dependents. Counsel emphasized that unless injunctive relief was granted, the substratum of the appeal will be lost, as eviction proceedings in Kisumu Chief Magistrate’s Court ELC Case No. E160 of 2024 were already underway. Indeed, it is due for further hearing on 27th July 2026. He urged that the appeal had overwhelming chances of success and that the respondents will not suffer any prejudice if the aforesaid interim relief is granted. 6.In opposition to the application, Ms. Awuor submitted that the application was incompetent, as the Notice of Appeal allegedly filed was never served upon them, thereby offending or infringing Rules 77–79 of the Court of Appeal Rules. Counsel contended that the draft Memorandum of Appeal disclosed no arguable point of law, but merely sought to reopen factual findings of the High Court. He further submitted that eviction alone does not render an appeal nugatory, as damages would suffice, and that the applicant had no lawful interest in the estate of the deceased. Counsel also accused the applicant of forum shopping, having withdrawn a similar application in the trial Court before re-filing it in this Court. 7.We have carefully considered the application, the rival affidavits, submissions, and the applicable law. The law on how to deal with applications of this nature is settled and requires no reinventing of the wheel. A successful applicant only requires to demonstrate that the appeal or intended appeal is arguable and absent stay, injunction or stay of proceedings, the appeal or intended appeal will be rendered nugatory. See J.K. Industries v Kenya Commercial Bank Ltd & Another [1987] KECA 72 (KLR). 8.On the first limb, we note that the applicant challenges the trial court’s determination of her spousal status and dependency. While these are factual findings, they touch on fundamental rights to inheritance and recognition of dependents under The Law of Succession Act. An arguable appeal need not succeed; it suffices that it raises a bona fide issue deserving consideration. We are satisfied at this juncture that the appeal discloses at least one arguable point. 9.On the second limb, the applicant faces imminent eviction from the suit property she claims to be her matrimonial home. If eviction occurs before the appeal or intended appeal is heard and determined, restoration may not be possible, and damages may not adequately compensate for loss of the residence and dignity. We are therefore persuaded that the appeal would be rendered nugatory if interim relief is denied. 10.As we pen off, we need to address the respondents’ contentions regarding procedural defects in the Notice of Appeal and its service thereof. All we can say thereof is that, it is not a matter formally before us for determination. There is a procedure laid out in this Court’s rules to impugn such notice which the applicant has not invoked. 11.In the result, we are satisfied that the applicant has met the threshold required under Rule 5(2)(b). Accordingly, the application succeeds and we make the following orders:a.Pending the hearing and determination of the appeal or intended appeal, an order of injunction is hereby issued restraining the respondents, their agents, servants, employees, or any persons acting under their authority from evicting, removing, dispossessing, or interfering with the applicant’s occupation, possession, use, and access to L.R. Kisumu Municipality/Block 12/457/B3.b.Costs of this application shall abide the outcome of the appeal. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA……………….…………………JUDGE OF APPEALE.C. MWITA…………….…………………JUDGE OF APPEALB. ONGAYA………………...……………… JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR