https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1520

Nandama & another v Tunai & another (Civil Application E674 of 2025) [2026] KECA 1520 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1520 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E674 of 2025 JM Ngugi, Katwa Kigen & MN Nduma, JJA July 31, 2026 Between Sussy Khaadi Nandama 1st Applicant Nataly Narano Sumbi 2nd Applicant and Yvonne Tunai 1st Respondent Desterio Okumu 2nd Respondent (Being an application for stay of execution pending the hearing and determination of an appeal from the ruling and order of the High Court of Kenya at Nairobi (Kendagor, J.) dated 9th October, 2025 in HC Succ. Cause No. 1564 of 2020) Ruling 1.Before us is a Notice of Motion dated 23rd October, 2025 brought under Rule 5(2)(b) of the Court of Appeal Rules. The Applicants seek principally an order staying the execution of the ruling and orders of the High Court (Kendagor, J.) in Milimani High Court Succession Cause No. E1564 of 2020 delivered on 9th October, 2025 pending the hearing and determination of their intended appeal against that ruling. Since the impugned ruling directed that certain handwritten notes allegedly authored by the deceased be surrendered to the Directorate of Criminal Investigations (DCI) for forensic examination, the Applicants readily acknowledge that the practical effect of the stay orders sought would be to stay further proceedings at the High Court. 2.The impugned ruling arose in revocation proceedings relating to the estate of the late Robert John Sumbi. The central dispute in the succession cause concerns the authenticity and legal effect of a document propounded as the deceased's last will and testament. During the proceedings, questions arose regarding certain handwritten notes said to have been authored by the deceased and whose contents allegedly mirror those contained in the disputed will. 3.Upon an application by the Respondents, the learned Judge directed that the handwritten notes be surrendered to the Directorate of Criminal Investigations for forensic examination; that appropriate handwriting samples be availed to facilitate the examination; and that the resulting report be filed in court within ninety days. The Applicants were also ordered to bear the costs of the application. 4.Aggrieved by those directions, the Applicants lodged a Notice of Appeal and have expressed an intention to challenge the ruling principally on the grounds that the learned Judge erred in directing forensic examination before first determining whether the handwritten notes constituted a document capable of recognition under the Law of Succession Act; that the order was made in respect of documents whose originals had not properly been produced before the court; that the learned Judge thereby acted prematurely; and that the impugned directions occasion procedural unfairness contrary to Article 50 of the Constitution. Pending the intended appeal, they now ask this Court to stay the implementation of the orders and, effectively, to halt the proceedings before the High Court. 5.The application is supported by the affidavit of the 1st Applicant, Sussy Khaadi Nandama. In summary, the Applicants contend that the intended appeal is arguable and raises substantial questions regarding the admissibility of the handwritten notes; the propriety of ordering a second forensic examination; and the legality of the procedure adopted by the High Court. They further contend that unless the proceedings are stayed, the forensic examination will fundamentally alter the evidentiary landscape before the High Court, thereby rendering the intended appeal nugatory. 6.The application is opposed through the replying affidavit sworn by the 1st Respondent and the written submissions filed on behalf of the Respondents. Learned counsel submitted that the Applicants have failed to satisfy either limb of the well-established test under Rule 5(2)(b). On the first limb, counsel argued that the intended appeal is not arguable because the impugned order merely facilitates forensic examination of documents whose authenticity is itself in issue and falls squarely within the High Court's case-management powers. The order neither determines the substantive rights of the parties nor prejudges the issues awaiting determination in the succession cause. 7.On the second limb, the Respondents submitted that the Applicants had failed to demonstrate how the intended appeal would be rendered nugatory if the proceedings before the High Court were allowed to continue. Counsel argued that the forensic examination merely generates expert evidence for consideration by the trial court and does not determine the outcome of the succession proceedings. The resulting report is neither automatically admissible nor conclusive, and the Applicants will remain at liberty to challenge its admissibility, methodology, findings and evidential weight before the High Court. In the Respondents' view, any apprehended prejudice is, therefore, speculative and falls far short of the exceptional circumstances necessary to justify the grant of a stay of proceedings. 8.The application came up for hearing before us on 2nd March, 2026. Mr. Nicholas Odongo, together with Ms. Catherine Shumila, appeared for the Applicants, while Ms. Audrey Ihachi, holding brief for Mr. Marisio Luchivia, appeared for the Respondents. Learned counsel relied on their respective written submissions, which they briefly highlighted before us and responded to questions from the Court. 9.The principles governing the exercise of this Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules are now too well settled to admit of controversy. The jurisdiction is original, independent and discretionary. It is exercised neither as an appeal from the decision of the High Court nor as a rehearing of the application before that court. Rather, it is a special jurisdiction invoked for the purpose of preserving the efficacy of the Court's appellate jurisdiction. The principles governing its exercise have been restated in a long line of authorities, including Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. 10.Over the years, this Court has crystallised two conditions which must both be satisfied before relief under Rule 5(2)(b) can issue. The first is that the intended appeal must be arguable; the second is that unless the relief sought is granted, the intended appeal, if ultimately successful, would be rendered nugatory. These twin requirements are conjunctive. Failure to satisfy either limb is fatal to the application. 11.The first limb does not require an applicant to demonstrate that the intended appeal will succeed. It is sufficient if the appeal raises even a single bona fide point deserving judicial consideration. As this Court explained in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others (supra), an arguable appeal is not one which must necessarily succeed but one which is not frivolous. 12.The second limb - the nugatory aspect - requires the Court to examine the practical consequences that would follow if interim relief is declined. The Court must be satisfied that absent such relief, the intended appeal would be rendered worthless, futile or merely academic because the substratum of the appeal would have been destroyed or because the applicant would suffer prejudice incapable of adequate redress if the appeal eventually succeeds. Conversely, where the alleged prejudice is speculative, remediable, or where the subject matter of the intended appeal remains capable of effective vindication, the appeal cannot properly be said to have been rendered nugatory. 13.It is equally important to bear in mind that the practical effect of what the Applicants principally seek is not just a stay of execution but a stay of proceedings. The distinction is not merely one of terminology. An order which functionally halts proceedings is a more intrusive remedy because it arrests the ordinary progress of litigation before a court lawfully seized of the dispute. It interrupts a litigant's right to have his or her dispute heard and determined without undue delay and necessarily implicates the constitutional values of access to justice and the expeditious disposal of disputes. Consequently, this Court exercises great caution before issuing relief whose impact would be to halt proceedings before a trial court. While the Court must remain vigilant to preserve the effectiveness of its appellate jurisdiction, it must equally guard against unnecessarily interrupting proceedings before courts exercising their lawful jurisdiction. 14.We begin with the first limb. The Applicants contend that the intended appeal raises several bona fide questions of law. Among them are whether the learned Judge erred in directing forensic examination of the handwritten notes before first determining whether those notes were capable of recognition as testamentary documents under the Law of Succession Act; whether the impugned order was made in respect of documents whose originals had not properly been produced before the court; whether the learned Judge thereby exceeded the proper bounds of interlocutory case management; and whether the procedure adopted infringed the Applicants' right to a fair hearing under Article 50 of the Constitution. 15.Without expressing any concluded view on the merits of those complaints, we are satisfied that they are neither idle nor frivolous. They raise legitimate questions regarding the proper sequencing of evidentiary inquiries in succession proceedings, the scope of the High Court's case-management powers, and the interaction between the Law of Succession Act and the Evidence Act. Whether those complaints will ultimately succeed is a matter reserved for the intended appeal. At this stage, it suffices to say that the intended appeal is arguable within the meaning of Rule 5(2)(b). 16.The more difficult question is whether the Applicants have demonstrated that unless the stay sought is granted, the intended appeal would be rendered nugatory. It is on this second limb that the application ultimately turns. 17.The Applicants argue that permitting the forensic examination to proceed will fundamentally alter the evidentiary landscape before the High Court. Their apprehension is that once the Directorate of Criminal Investigations prepares and files its forensic report, the proceedings will have moved beyond the point at which the intended appeal can provide any meaningful relief. Put differently, they contend that the very act of undertaking the forensic examination will irreversibly prejudice their case. 18.We are unable, with respect, to agree. 19.The impugned order is, in its nature, interlocutory and evidentiary. It neither determines the authenticity of the handwritten notes nor pronounces upon their admissibility in evidence. Equally, it does not determine the revocation proceedings pending before the High Court, distribute the estate, or conclusively determine any substantive rights of the parties. Its immediate effect is simply to facilitate the preparation of expert evidence which the trial court may, or may not, ultimately receive and rely upon. 20.That distinction is important. The preparation of a forensic report is not synonymous with its admission in evidence. Nor does the existence of such a report predetermine the probative value that the trial court may eventually attach to it. Whether the report satisfies the requirements of admissibility under the Evidence Act; whether the expert's methodology is reliable; whether the conclusions reached are persuasive; and ultimately what evidential weight, if any, should be accorded to the report, remain matters entirely within the province of the High Court. 21.Indeed, as the Respondents correctly point out, the Applicants retain every procedural safeguard available to a litigant faced with expert evidence. They remain at liberty to object to the admissibility of the report; to challenge the qualifications or methodology of the expert; to cross-examine the maker of the report; to adduce contrary expert evidence if they so choose; and to submit that the report should ultimately be rejected or accorded little or no evidential weight. None of those rights is foreclosed by the mere preparation of the forensic report. 22.In those circumstances, we are unable to see how the substratum of the intended appeal would be destroyed merely because the forensic examination proceeds. At most, the impugned order advances the evidentiary process in the pending succession proceedings. It does not irreversibly determine the evidentiary or substantive rights of the parties. The purpose of Rule 5(2)(b) is to preserve the efficacy of the appellate process, not to shield parties from every interlocutory step that may influence the conduct of proceedings before the trial court. 23.We appreciate the Applicants' concern that the High Court ought first to determine whether the handwritten notes satisfy the legal requirements of a testamentary document before directing forensic examination. That contention forms part of the arguable appeal which we have already acknowledged. However, the existence of an arguable appeal does not, without more, satisfy the second limb of Rule 5(2)(b). The Applicants must go further and demonstrate that continuation of the proceedings would occasion prejudice incapable of effective redress should the intended appeal eventually succeed. 24.In our view, they have not done so. Their assertion that the forensic examination will "substantially change" the proceedings remains, at this stage, speculative. Any effect the report may ultimately have upon the proceedings depends upon a succession of future judicial determinations, including whether it is admitted in evidence and, if admitted, the weight the trial court chooses to attach to it. Those are matters yet to be decided. They cannot, in our respectful view, constitute the kind of irreversible prejudice contemplated under the nugatory limb of Rule 5(2)(b). 25.In our view, permitting the High Court proceedings to continue allows the succession dispute to progress toward resolution while preserving the Applicants' right to challenge, at the appropriate stage, both the admissibility and probative value of any forensic evidence eventually produced. Should the intended appeal ultimately succeed, appropriate appellate relief would remain available. The Applicants have. Therefore, failed to demonstrate that refusal of a stay would render the intended appeal nugatory. 26.In the result, although we are satisfied that the intended appeal raises at least one arguable issue deserving consideration by this Court, the Applicants have failed to satisfy the second and equally indispensable requirement under Rule 5(2)(b). They have not demonstrated that, absent the orders sought, the intended appeal would be rendered nugatory. The prejudice apprehended remains contingent upon future evidentiary rulings and ultimate findings that the High Court has yet to make. The substratum of the intended appeal, therefore, remains intact. 27.Accordingly, while the Applicants have crossed the relatively low threshold of arguability, they have not surmounted the considerably higher threshold required to justify staying the implementation of the ruling and orders of the High Court (Kendagor, J.) in Milimani High Court Succession Cause No. E1564 of 2020 delivered on 9th October, 2025. Having failed to satisfy both conjunctive limbs of Rule 5(2)(b), the application cannot succeed. 28.The Notice of Motion dated 23rd October, 2025 is accordingly dismissed with costs to the Respondents. 29.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.JOEL NGUGI.........................JUDGE OF APPEALKATWA KIGEN.........................JUDGE OF APPEALNDUMA NDERI.........................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR