Elior v Njoroge & 8 others (Civil Appeal (Application) E003 of 2026) [2026] KECA 1209 (KLR) (26 June 2026) (Ruling)

Elior v Njoroge & 8 others (Civil Appeal (Application) E003 of 2026) [2026] KECA 1209 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1209 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E003 of 2026 JM Mativo, MB Kairaria & AI Hassan, JJA June 26, 2026 Between Mashadi Amario Elior Applicant and Miki Ng’ang’a Njoroge 1st Respondent Sheena Euston Amario 2nd Respondent James Ng’Ang’A Kamau 3rd Respondent Yuri Gilbert Amario 4th Respondent Debbie Amario 5th Respondent Salome Wanjiku Mwangi 6th Respondent Bernice Njeri Kamau 7th Respondent Sheila Wangari 8th Respondent Elvis Karee Amario 9th Respondent (Being an application for interim preservatory and status quo orders pending the hearing and determination of the applicant’s notice of motion dated 5th January 2026 and the substantive appeal from the ruling of the High Court of Kenya at Nakuru (S. Muhochi, J.) dated 21st November 2025 in Succession Cause No. 354 of 2010) Ruling 1.Mashadi Amario Elior (the applicant) acting in person moved this Court by an application dated 15th January 2026 seeking a raft of orders from this Court. The application is brought under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, Sections 3A and 3B of the Appellate Jurisdiction Act, Sections 45, 55 & 83 of the Law of Succession Act, Articles 27 and 159 of the Constitution and the inherent jurisdiction of the Court. 2.The application is premised on the grounds that:(a)the applicant’s appeal raises arguable issues of law against the ruling of the High Court delivered on 21st November 2025;(b)absent of stay, the appeal will be rendered nugatory;(c)new and supervening facts have emerged demonstrating imminent steps towards sale, receipt of deposits, transfer and distribution of estate assets thereby threatening to render the pending appeal and stay application nugatory;(e)there is a risk of the appeal being rendered a mere academic exercise if the partial grant is implemented(f)there is evidence of ongoing intermeddling with estate assets and breaches of fiduciary duty contrary to Sections 45, 55 and 83 of the Law of Succession Act;(g)absent of stay, the respondents will continue to sell the assets rendering both the appeal nugatory and occasion irreparable harm to the applicant(h)the balance of convenience overwhelmingly favors the preservation of the estate assets pending determination of the appeal. 3.The 9th respondent filed a replying affidavit dated 24th April 2026 essentially supporting the application. 4.The 1st and 2nd respondents filed an undated replying affidavit sworn by the 1st respondent opposing both the applicant’s application dated 5th January 2026 and 15th January 2026 stating that:(a)the appeal is not arguable;(b)the applicant’s appeal will not be rendered nugatory because the properties were to be sold pursuant to a consent for partial confirmation of the grant which was allowed vide a ruling dated 31st January 2024 but they are yet to be sold owing to constant frustrations and sabotage by the applicant as evidenced by the annextures to the application;(c)no irreversible harm will be occasioned;(d)the application does not meet the threshold under Rule 5 (2) (b). 5.The 7th respondent filed a replying affidavit dated 25th May 2026 opposing the application. In a nutshell, she maintained that the applicant has not satisfied the threshold to merit the orders sought, that the application seeks a myriad of prayers that are not tenable, the applicant’s appeal is not arguable and includes grounds that were not canvassed before the trial court, and, the confirmed grant is yet to be issued hence, a stay will only delay the succession proceedings which have been in court for over two decades. 6.The applicant filed a replying affidavit dated 31st May 2026 in reply to the 7th respondent’s replying affidavit essentially maintaining that her application is merited. 7.In her submissions, the applicant argued that the partial relief leaves gaps for irreversible harm and cited Madhupaper International Ltd vs. Kerr [1985] KLR 840 in support of the proposition that the discretion under Rule 5(2) (b) is exercised to prevent injustice and preserve the efficacy of the appeal. She urged this Court to allow her application. 8.The 9th respondent filed written submissions dated 24th April 2026 in support of the application essentially maintaining that the applicant has met the threshold and urging this Court to allow the application contending that in absence of stay, the appeal will be rendered nugatory. To buttress his submissions, the 9th respondent relied on this Court’s decision in Reliance Bank Ltd & Norlake Investments Ltd vs. Norlake Investments Ltd [2002] KLR. 9.Learned counsel Ms Odongo and Brain Ochieng representing the 1st, 2nd, 3rd, 4th, 5th and 6th respondents opposed the application urging that the applicant seeks to stay two rulings, one dated 31st January 2024 and a second one dated 21st November 2025. Counsel argued that the application is defective and added that the application seeks to challenge a consent for partial distribution which was agreed by all the parties which allowed partial distribution of the estate by permitting four parcels of land to be sold to unlock some financial challenges facing the estate. Counsel argued that the applicant’s application was dismissed by the trial court, therefore, there is nothing to stay. However, the sale has not proceeded because the applicant filed an application before the trial court challenging the consent which allowed the sale. Further, there is a pending application seeking revocation of the grant. In a nutshell, counsel submitted that there is no justification for the stay. Further, the nugatory aspect has not been proved. 10.Learned counsel Ms Kinuthia appearing for the 7th respondent relied on his written submissions dated 27th May 2026 in which he essentially maintained that the application does not satisfy the threshold to merit the reliefs sought under Rule 5(2)(b) and urged this Court to disallow the application with costs to be borne by the applicant. 11.We will start our determination by addressing prayers (3) and (5) of the application. Notably, these prayers as drafted have two distinct parts. The first part of these prayers seeks stay pending the hearing of an earlier filed application dated 5th January 2016 while the second part seeks stay pending hearing of the applicant’s appeal. 12.Seeking stay pending hearing and determination of an earlier filed application which seeks stay of execution pending appeal against the same ruling is improper and highly irregular. Filing multiplicity of suits/applications seeking similar reliefs is a practice that is abhorred by the courts. It amounts to vexing a respondent twice and clogging the justice system. In any event, a reading of Rule 5 (2) (b) of this Court’s Rules leaves no doubt that the rule contemplates issuance of a stay order by this Court pending hearing and determination of an appeal where a notice of appeal has been filed. The said rule reads:(2)Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—(b)in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just. 13.The above rule cannot be stretched to cover situations where a litigant files a notice of an appeal, then files a 5 (2) (b) application and during its pendency, the applicant files a subsequent application seeking stay of the same ruling pending the hearing and determination of his earlier filed application as the applicant has sought to do in the first part of prayers 3 and 5 in this application seeking stay pending the hearing of the earlier application are incompetent. 14.We now turn to prayers (4) and (5). In these prayers, the applicant seeks orders against persons/public officials who are not parties to the proceedings before the trial court or in this application. The said prayers read:“(4)That pending further orders of this Honourable Court, the Land Registrar (Naivasha /Nakuru), the Naivasha Land Control Board and any relevant land authorities do note and maintain appropriate restrictions and /or cautions against any dealings, transfers, registrations or mutations affecting Naivasha/Mwichiringiri/Block 4 Nos. 3570, 3571, 3572 and 3573, and any other immovable properties registered in the name of the deceased.(5)That pending the hearing and determination of the Notice of Motion dated 5th January 2026 and the substantive Civil Appeal No. E003 of 2026, this Honourable Court be pleased to issue interim preservatory and restorative orders directing the Registrar of Companies to:(a)temporarily restore and maintain the shareholding of Fai Amarillo Limited to the position obtaining prior to the unilateral alterations by the 1st Respondent, namely 900 ordinary shares (90%) held by the Estate of the Late Fai Omar Amario;(b)inhibit the registration of any further allotment, transfer, dilution, charge, or alteration of shareholding or directorship of the said company;(c)decline to register any documents inconsistent with the said restored status quo, pending further orders of this Honourable Court. 15.A court of law cannot issue an adverse or binding legal order against a person or entity that has not been formally joined as a party to the suit. Doing so represents a fundamental violation of the right to a fair hearing and the principles of natural justice. As was held by the Supreme Court of India in J.S. Yadav vs. State of U.P. & Another [2011] 6 SCC 570 at paragraph 31, “no order can be passed behind the back of a person adversely affecting him and such an order if passed, it is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice…” 16.The Constitution recognizes a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations. It is a fundamental rule of the common law doctrine of natural justice that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. 17.Our courts have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. Article 50 (1) of the Constitution guarantees everyone the right to have a legal dispute resolved in a fair, public hearing. A court condemns a non-party "behind their back" if it issues orders affecting their rights before giving them a chance to plead their case. As was succinctly stated by the High Court in Ramogi & 3 Others vs. Attorney General & 4 Others, [2020] eKLR, “a lawsuit is a solemn process strictly "owned" by its principal parties. A court cannot expand its judicial reach to impose liabilities or duties on outsiders who have no legal presence in the pleadings. The audi alteram partem Rule mandates that no person should be judged or have their property/rights altered without being given the opportunity to be heard.” We have said enough to demonstrate that prayers (4) and (5) to the extent that these prayers are directed against persons/entities that are strangers to these proceedings, the said orders cannot be issued. 18.Nevertheless, we will consider the “second” part of prayers (3),(5) & (6) which have a resemblance of falling under Rule 5 (2) (b). The second part of prayer (3) seeks an order that until further orders of this Court, the respondents or their agents be restrained from implementing the partial distribution of the deceased’s estate. The second part of prayer (5) seeks stay pending hearing of Civil Appeal No. E003 of 2026. Prayer (6) seeks a similar relief. 19.We have considered the application, the responses and the parties’ submissions. The parameters for determining whether an appeal is "arguable" have been extensively defined by this Court, primarily when handling applications for stay of execution, injunction, or stay of further proceedings under Rule 5 (2) (b) of the Court of Appeal Rules. The ultimate rule established by our courts is that an arguable appeal is not one that must necessarily succeed, but rather one which raises a bona fide point of law or fact that is not frivolous and deserves to be fully heard by the court. (See Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR). 20.As to whether or not the appeal is arguable, we have to consider whether there is at least a single bona fide arguable ground that has been raised by the applicant in order to warrant ventilation before this Court, bearing in mind that an arguable ground is not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous and this Court must not make definitive or final findings of either fact or law at this stage because doing so may embarrass the ultimate hearing of the main appeal. (See Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLR). The applicant contends that the partial confirmation of the estate by consent which the trial court declined to review and set aside in the impugned ruling is erroneous and exposes the entire estate to the threat of illegal alienation. The applicant does not need to raise a multiplicity of grounds. A single, bona fide arguable point is sufficient to meet the threshold. Without delving into the merits of the intended appeal as this will be the preserve of another bench, we take the view that this is certainly a matter for resolution by this Court. 21.Demonstrating that an appeal is arguable is only the first step.The applicant must also satisfy the second limb of the test: proving that if the court does not grant the requested order (such as a stay of execution or an injunction), the ultimate success of the appeal will be rendered nugatory (useless, empty or a mere academic exercise). Whether an appeal will be rendered nugatory is a question of fact to be determined on a case-by-case basis. There is no mathematical or rigid formula. The court must look at the unique circumstances of each case. (See Royal Media Services Limited & Ano. vs. Macharia Waiguru [2015] KECA 689 (KLR)). 22.The applicant’s argument is that the estate’s properties are in the process of being sold. It is also the applicant’s case that if the partial confirmation of the grant is not stayed, partial distribution will proceed and in the event of his appeal succeeding, it will be rendered nugatory. These two arguments are attractive. But that is how far the go. There is uncontroverted evidence that no property has been sold courtesy of numerous applications filed by the applicant before the trial court. There is also uncontroverted averment that the applicant or his privies have applied for revocation of the grant. Any aggrieved party including the applicant shall have the legal right to challenge the ruling(s). A primary indicator that an appeal will become nugatory is if the actions sought to be stayed will create a situation that cannot be reversed or undone. The court frequently utilizes the analogy that "you cannot unscramble an egg.” (See Kenya Ports Authority v Nightshade Properties Limited & 4 Others (Civil Appeal (Application) E025 of 2021) [2022] KECA 385 (KLR) (4 March 2022) (Ruling). No convincing argument was urged before us demonstrating that absent of stay, the partial distribution or any property sold cannot be reversed or the applicant compensated in monetary terms should her appeal succeed. 23.Accordingly, we are not persuaded that the applicant has demonstrated that the appeal will be rendered nugatory. In view of the foregoing, we find that the applicant has failed to satisfy the twin principles for grant of the orders sought pursuant to Rule 5 (2) (b). Accordingly, the notice of motion dated 15th January 2026 fails and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.J. MATIVO................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.