https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1285

Kamukunji Business Centre Ltd & another v Wainaina & 2 others (Civil Appeal (Application) E563 of 2021) [2026] KECA 1285 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1285 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E563 of 2021 K M'Inoti, EC Mwita & B Ongaya, JJA July 10, 2026 Between Kamukunji Business Centre Limited 1st Applicant Pangani Animal Feeds Limited 2nd Applicant and Dorcas Nyokabi Wainaina 1st Respondent Julius Kamau Wainaina 2nd Respondent Eva Wanjiku Wainaina 3rd Respondent (Being an application for stay of execution pending appeal from the ruling and order of the High Court of Kenya at Nairobi (Ali- Aroni, J) dated 10th June 2021 in HC Succ. Cause No. 651 of 2012) Ruling 1.Before us is an application dated 24th September 2021 brought under rule 5(2)(b) of the Court of Appeal Rules, seeing stay of execution of the ruling and orders of the High Court of Kenya at Nairobi (Aroni, J.) dated and delivered on 10th June 2021, pending the hearing and determination of the appeal. The application also seeks stay of proceedings in High Court Succession Cause No. 651 of 2012 pending the hearing and determination of the appeal. 2.The application is premised on the grounds on its face and the supporting affidavit sworn by Teresia Wanjiku Wainaina. The gist of the application as can be seen from those grounds and the supporting affidavit, is that the High Court declined to allow the applicants’ application to be joined into the succession cause proceedings as interested parties despite being owners of the two properties LR Nos.209/9036 and 1434 owned by Kamukunji Business Centre Limited and Pangani-Animal Feeds Limited, respectively; declined to set aside an order directing that rent from the two premises be collected by an estate agent; declined to declare that the two premises belong to the applicants as limited liability companies and do not belong to the deceased and, therefore, rent from those properties belongs to the applicant companies. Although the respondents were served with the application, they did not file responses. 3.When the application came up for plenary hearing on the Court’s virtual platform on18th March 2025, counsel for the applicants was present but there was no appearance for the respondents despite service of the hearing notice by the Court. The applicants’ counsel relied on the applicants’ written submissions which he briefly highlighted. The respondents did not also file submissions to the application. Counsel for the applicants relied on his written submissions which he briefly highlighted. 4.The applicants’ submission was that the appeal is arguable since the properties belong to them as limited liability companies and are not part of the estate of the deceased and therefore rent from those properties cannot be collected by the estate agent as the court directed; that they were not party to the proceedings and were not heard before the order was made, but their application to be joined in the Succession Cause as interested parties and for review the orders of 18th May 2018 was dismissed. 5.According to the applicants, LR No. 209/9036 is registered in the name of the deceased; that Kamukunji Business Centre and Pangani Animal Feeds were initially registered as business names in the joint names of Samuel Muiruri Wainaina (deceased) and Teresia Wanjiru Wainaina and after the deceased’s death (on 15th November 2011), Kamukunji Business Centre and Pangani Animal Feeds were incorporated as limited liability companies (on 6th December 2011 and 27th January 2012, respectively) and, therefore, they have an arguable appeal as demonstrated by the draft memorandum of appeal. They cited the decisions in Stanley Kangethe Kinyanjui v Tony Keterr & 5 others [2013] KECA 378(KLR); Esther Wanjiru Githatu v Mary Wanjiru Githatu [2019] KECA 811(KLR) and Scholastica Ndululu Suva v Agness Nthenya Suva [2019] KECA 1053(KLR) to support their position that the intended appeal is arguable. 6.On the second limb, the nugatory aspect, the applicants argued that absent stay, the intended appeal will be rendered nugatory because rent proceeds from the two premises will continue to be collected by the estate agent and may be shared among beneficiaries of the deceased’s estate before the deceased’s share in the estate is determined; Teresia Wanjiku Wainaina may not recover her share once the estate is distributed and the applicants, as business entities, will suffer loss. 7.We have considered the application, the affidavit in support and the applicants’ submissions against the established principles as stated in Stanley Kangethe Kinyanjui v Tony Ketter and 5 Others (supra). 8.Under rule 5(2)(b), this Court has original and unfettered discretion to grant stay of execution but that discretion must be exercised judiciously. An order for stay of execution may be granted where the court whose decision is being challenged on appeal, made a positive order that can be executed and is therefore capable of being stayed and the applicant satisfies the conditions for granting stay. 9.In the present application, the applicants’ application before the High Court was dismissed with the result that what the High Court made was a negative order. It is now settled that under rule 5(2)(b), this Court cannot grant stay of execution over a negative order because there is nothing to stay, an issue this Court has been clear about in many decisions. 10.For instance, in George ole Sangui v. Kedong Ranch Ltd [2015] eKLR, this Court observed as follows:“The dismissal order cannot be enforced and is not capable of execution. It is not a positive order requiring any party to do or to refrain from doing anything. It does not confer any relief. It simply determined the suit by making a finding that the claimant was not entitled to the reliefs or orders sought and dismissed the suit against the respondent. That was not a positive order that required any party to do or refrain from doing anything. It was not capable of execution or enforcement. The act of dismissal of the suit could not be stayed. It is our finding that to the extent to which the application seeks stay of the order of the dismissal of the suit it cannot be granted.”(See also Daniel Lomagul Kandei & 2 others v. Kamanga Holdings Ltd & 40 others [2017] KECA 551 (KLR); Mwangi Gikonyo & another v Mukumbu Wambui [2022] KECA 1033 (KLR) and Nduati v Nduati [2026] KECA 251 (KLR). 11.The order made by the High Court dismissing the applicants’ application being a negative order, is incapable of being executed and this Court cannot therefore stay its execution because there is nothing to stay. 12.Turning to stay of proceedings, the order the applicants have sought is stay of proceedings pending the hearing of the application interpartes. This is plain from order number 2 of the application dated 24th September 2021, which is framed in the following words:“An order be and is hereby issued staying the proceedings in Succession Cause No. 651 of 2012 pending the hearing and determination of this application.” 13.Notwithstanding that marginal error in the application seeking to stay proceedings pending the determination of the application interpartes, there is no deposition in the supporting affidavit to the effect that the applicants are also seeking stay of proceedings pending appeal. In fact, at paragraph 6 of the supporting affidavit, Teresia Wainaina deponed as follows:“That the applicants seek the ruling and subsequent orders stayed and or set aside and to have the two buildings on the properties land reference no 209/1534 and 209/9036 excluded from the Estate of Samuel Wainaina as they are owned by limited companies.” 14.The applicants sought stay of the ruling and orders which means they seek stay of execution and not stay of proceedings before the High Court pending the hearing and determination of the appeal before this Court. Even if we were to assume that the applicants also intended to seek stay of proceedings, they were required to satisfy this Court that absent stay, their appeal would be rendered nugatory. 15.This is because an applicant must show that there is an arguable appeal that is, the intended appeal at least raises an issue that requires the Court’s consideration, not necessarily that the appeal must succeed, but an issue the Court needs to consider and determine. See Stanley Kang’ethe v Tony Ketter & 5 others (supra), where this Court stated that an arguable appeal is not one that must succeed but one which ought to be fully argued before the Court; one that is not frivolous and the Court should not make conclusive findings of either fact or law at this stage to avoid embarrassing the bench that will ultimately hear the appeal. 16.The applicants stated that they intend to challenge the ruling of the High court on grounds that the High Court erred in; refusing to allow them participate in the Succession proceedings despite making orders that affect them; failing to appreciate that the buildings from which rent was ordered to be collected by the estate agents are owned by limited liability companies and not the deceased and holding that it did not have jurisdiction to determine the issue of ownership of land yet it was not an issue before it. These are certainly arguable points deserving consideration and resolution by this Court. 17.On the nugatory aspect, this Court stated in Meta Platforms, Inc & another v SamaSource Kenya EPZ Ltd t/a Sama & 185 others; Central Organization of Trade Unions of Kenya & others (Interested Parties) Application No E178 of 2023 [2023] KECA 999(KLR), that stay of proceedings pending hearing and determination of an interim appeal should only be granted where circumstances show that the order appealed against will cause prejudice to an applicant if the matter proceeds. The court cited a persuasive decision of the Court of Appeal of Nigeria (Abuja Division), Nigeria NNPC & another vs. Odidere Enterprises Nigeria Ltd (2008) NWLR (Pet. 1090) 583 at 616-618) per Aboki, JCA, that:“Stay of proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of the case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless proceedings beyond all reasonable doubt ought not to be allowed to continue.” 18.In Waithaka v Tribunal appointed to investigate the conduct of Hon. Justice Lucy Njoki Waithaka & another; Kenya Magistrates and Judges Association (Interested party) (Civil Application 8 of 2020) [2020] KECA 571(KLR), this Court observed that the factors which can render an appeal nugatory have to be considered on case to case basis and, in doing so, the Court is bound to consider the conflicting claims of both sides. 19.In this application, we note that the applicants’ appeal is against the ruling delivered on 10th June 2021 which dismissed their application to join them into the proceedings before the High Court and review the ruling of 10th May 2018. The authorities are clear that when considering whether or not to order a stay of proceedings, and especially on the basis that the appeal will be rendered nugatory, the consideration must be on case to case basis; the Court has to consider the conflicting claims of both sides; circumstances of each case, including the stage the proceedings sought to be stayed had reached and grant stay only if proceedings ought not to be allowed to continue. An applicant must also show that there are active proceedings that would continue to the prejudice of the appeal which the Court could stay. 20.The applicants sought an order of review and setting aside of order No 6 made in the ruling dated 18th May 2018 directing Lloyd Masika Ltd, estate agents to collect rent from the two premises, an order that has been in force for more than 8 years. That notwithstanding, the applicants who were only challenging Order No. 6 in the impugned ruling, did not show that there are further active court proceedings pending in the High Court and when they were set to proceed to enable this Court determine whether or not those proceedings can be stayed. 21.Taking into account the law and the facts of this application as we have highlighted above, the applicants have not satisfied the requirements for granting stay of proceedings. 22.The applicants have not satisfied us that there is a positive order against which to grant stay of execution. Regarding stay of proceedings, the applicants have only satisfied the limb for arguability but have failed to establish the second limb that the appeal will be rendered nugatory as required under Rule 5(2)(b) of the Court of Appeal Rules. 23.Ultimately, the application dated 24th September 2021 lacks merit and is hereby dismissed with no order on costs. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.K. M’INOTI................................JUDGE OF APPEALE. C. MWITA................................JUDGE OF APPEALB. ONGAYA................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar.