https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1591

Mariano v Hijrat (Sued as the administrator of the Estate of Anthony Timothy Mariano - Deceased) & 3 others (Civil Application E640 of 2025) [2026] KECA 1591 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1591 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E640 of 2025 W Karanja, A Ali-Aroni & LM Njuguna, JJA July 31, 2026 Between Maria Szabanowicz Mariano Applicant and Morsel Hijrat (Sued as the administrator of the Estate of Anthony Timothy Mariano - Deceased) 1st Respondent Wali Hijrat 2nd Respondent Farzana Homeria Hijrat 3rd Respondent Registrar of Titles 4th Respondent (Being an application for orders of injunction and restraining orders pending hearing and determination of intended appeal against the judgment of the Environment and Land Court at Nairobi (Angote, J.) dated 29th February 2024inELC Case No. 151 of 2013) Ruling 1.Before us is a notice of motion dated 30th October 2025, filed pursuant to rules 5, 43, 44, and 49 of this Court’s Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The applicant seeks orders restraining the respondents from evicting her from Flat No.10, erected on LR No. 1870/V/241; I.R 75309, Maruti Apartments, pending the hearing and determination of this application and her intended appeal. 2.Based on the record before us, the applicant filed a suit before the Environment and Land Court seeking a declaration of her spousal and trust interests in property known as Flat 10, erected on L.R No. 1870/V/241; I.R 75309, Maruti Apartments (hereinafter referred to as “the suit property”). She contended that she solemnized a marriage with the deceased, Anthony Timothy Mariano, on 9th September 2000, and subsequently provided the deposit for the purchase of the suit property in 2002 using funds from her SACCO. The property, she claimed, was, however, registered solely in the deceased's name. 3.The applicant further contended that during a period of residency in Turkey, the 2nd and 3rd respondents herein (the deceased’s relatives) misappropriated matrimonial funds and obtained an invalid power of attorney while the deceased was incapacitated. 4.In response, the 4th respondent herein denied these claims but the 1st, 2nd and 3rd respondents did not file defences to the claim. 5.Upon hearing the parties, the trial court, Angote, J, dismissed the suit in its entirety, finding that the applicant failed to prove a valid marriage due to significant irregularities on the face of her marriage certificate. The court further found that the applicant failed to adduce evidence of substantial financial contribution, proving only a nominal payment of Kshs 33,750.00 against a purported purchase price of Kshs 413,500,000.00. 6.Aggrieved by the dismissal of the suit, the applicant lodged a notice of appeal dated 8th March 2024 together with the instant application seeking orders of injunction pending the hearing and determination of her intended appeal. In her affidavit in support of the application, the applicant states that unless the orders prayed for are granted, the respondents may evict her from the suit property. 7.Despite being served with the application, the respondents did not file any replying affidavit to oppose the motion. Neither did counsel for the respondents appear in Court on 20th April 2026, when the application was heard. 8.At the hearing, learned counsel for the applicant, Mr. Odawa, highlighted the applicant’s written submissions. On the arguability of the intended appeal, Mr. Odawa contended that the applicant intended to challenge the trial court’s finding on the validity of the marriage certificate. He submitted that the trial court confused an extract from the marriage register with a marriage certificate, leading to the erroneous conclusion that the document was fake because it lacked signatures. Counsel further submitted that the applicant intended to challenge the trial court’s finding on the applicant’s financial contribution towards the suit property. 9.On the nugatory aspect, counsel contended that the appeal would be rendered nugatory without an injunction, as the respondents are attempting to sell the suit property. The applicant cited the case of Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR, and stated that the application has met the threshold for the grant of an order of injunction. 10.The applicant prays that the application be deemed unopposed, as the respondents, having failed to file any response, have not controverted her averments. 11.We have considered the notice of motion, the supporting affidavit, the submissions filed by the applicant, and the applicable law. The two ingredients that the applicant should satisfy for the grant of the injunction order are whether the intended appeal is arguable and whether it shall be rendered nugatory should the intended appeal be successful. This was also reiterated by this Court in Nelson Andayi Havi vs. Law Society of Kenya & 3 Others [2018] eKLR, as follows:“It is trite that at this stage our remit does not extend to determining the merits or otherwise of the applicant’s intended appeal (see Njuguna S. Ndungu vs EACC & 3 others [2015] eKLR), it is restricted to determining on the basis of the material on record, first, whether his intended appeal is arguable, and second, whether, absent an order of injunction, that appeal will be rendered nugatory if it succeeds. (See Jaribu Holding Limited vs Kenya Commercial Bank Limited [2008] eKLR.” 12.On the arguability of the appeal, in Stanley Kang’ethe vs. Tony Keter & 5 Others [2013] eKLR, this Court restated the principles as follows:“(vi)On whether the appeal is arguable, it is sufficient if a single bona fide ground of appeal is raised. (Damji Pragji Mandavia vs. Sarah Lee Household & Body Care (K) Limited C.A. No. Nai. 345 of 2004).(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 (Joseph Gitahi Gachiu & Another vs. Pioneer Holdings (A) Limited & 2 others C.A. No. 124 of 2008).” 13.The applicant is seeking an interlocutory injunction pending appeal. Applying the threshold above, and with the material before us, we are of the considered view that the applicant’s intended appeal is arguable. Some of the questions raised by the applicant that need to be determined by the Court are whether her marriage to the deceased was valid, hence establishing spousal interest in the suit property, and whether she contributed towards the purchase of the suit property. These are issues that will be subject to interrogation during the hearing of the appeal and are sufficient to demonstrate that the intended appeal is not frivolous. 14.On the nugatory aspect, the position in law is that this 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 aggrieved party. See the case of Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227. 15.In this case, the applicant averred that the respondents have already taken active steps to unlawfully evict her and take over possession and control of the property. She expressed her apprehension that the 1st, 2nd, and 3rd respondents may sell, transfer, lease, or charge the suit property, which would permanently defeat her proprietary rights and interest. The applicant further averred that the 1st, 2nd,and 3rd respondents are not Kenyan citizens, and if they were to adversely deal with the property and leave the jurisdiction, she would have no means of seeking redress or enforcing the judgment if she succeeds in the appeal. These averments were not controverted by the respondents. In the circumstances, if the applicant is evicted and her appeal is successful, it would be rendered nugatory as the substratum of the appeal would have been lost. 16.For these reasons, we are satisfied that the applicant has met the threshold for granting the orders sought. 17.Accordingly, we grant the order of interlocutory injunction pending appeal as prayed in prayer 3 of the applicant’s notice of motion dated 30th October 2025. Costs shall abide the outcome of the appeal. 18.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.W. KARANJAJUDGE OF APPEAL................................ALI-ARONIJUDGE OF APPEAL................................L. NJUGUNAJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR