https://new.kenyalaw.org/akn/ke/judgment/keca/2026/963

Kamande v Khisa (Civil Application E470 of 2025) [2026] KECA 963 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 963 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E470 of 2025 SG Kairu, P Nyamweya & AO Muchelule, JJA May 15, 2026 Between Patrick Wanjiku Kamande Applicant and Kizito Walunywa Khisa Respondent (Being an application for stay of execution against the Ruling of the High Court of Kenya at Nairobi (H.K. Chemitei, J.) dated 17th July 2025 in HCCC No. E01 of 2024) Ruling 1.In a ruling delivered on 17th July 2025, the High Court at Nairobi (H. K. Chemitei, J.) directed, among other things, that the current market monthly rent of the premises known as Maisonette No. 7, Hillside Court, Upperhill, Nairobi (the property) be assessed by an estate agent within 14 days. Thereupon, the applicant was directed pay to the respondent half the value of the assessed monthly rent with effect from 5th August 2025 and thereafter on the 5th day of each succeeding month until determination of the suit or until further orders. It was ordered, in the alternative, that the applicant would be at liberty to vacate the premises and for the respondent to pay her half rent pending the determination of the suit or until further orders of the court. The applicant was also directed to grant the respondent access to the property within three days to enable him to collect his personal belongings. 2.Aggrieved, and intending to challenge that ruling before this Court, the applicant filed a Notice of Appeal dated 22nd July 2025 on the strength of which she has moved this Court by a Notice of Motion application dated 31st July 2025 seeking an order of stay of execution of the said ruling and consequential orders pending determination of her appeal. 3.The background in brief is that the parties herein got married on 9th September 1995. The marriage was however dissolved in November 2023. Within proceedings under the Matrimonial Property Act, the respondent presented an application to the High Court dated 2nd January 2024 in which he sought an interim order to be issued granting him unlimited access to the property. He also sought an order, pending the hearing and determination of the suit, to restrain the applicant from denying him access to the property. 4.On her part, the applicant made an application dated 4th January 2024 seeking orders of temporary injunction, pending the hearing and determination of the suit, to restrain the respondent from harassing her and from interfering with her quiet and peaceful possession of the property. She also sought orders to compel the respondent to produce original title documents in respect of the property as well as other properties. 5.The applicant complains that whereas the two applications were consolidated to be heard together, the learned Judge in the impugned ruling only dealt with the respondent’s application and did not, to her detriment, address the matters raised in her application. 6.We have duly considered the application dated 31st July 2025 alongside the applicant’s supporting affidavit, the respondent’s replying affidavit and the applicant’s supplementary affidavit. We have also considered the rival written submissions which were orally highlighted before us on 10th November 2025 when learned counsel Mr. J. Mwenda appeared for the applicant, while learned counsel Ms. Irene Kiarie appeared for the respondent. 7.The parameters the Court considers in applications of this nature are whether the applicant has demonstrated an arguable appeal, and secondly whether the appeal will be rendered nugatory, should the application be declined and the appeal ultimately succeeds. See Kinyanjui vs. Ketter & 5 others, Civil Application No.31 of 2013[2013] KECA 378(KLR). As to whether the appeal is arguable, our attention was drawn to the memorandum of appeal. It is contended that to the extent that the learned Judge failed, despite the two applications having been consolidated, to deal with the applicant’s application dated 4th January 2025, she was condemned unheard; that the Judge also erred in entertaining the respondent’s application which was not anchored on the substantive suit. We are satisfied that the appeal is not frivolous. It is arguable. 8.On the nugatory aspect, we note that both parties claim the property and learned Judge endeavoured to balance the scales by providing, in the interim awaiting the eventual determination of the suit, that either party can occupy the property and pay to the other the equivalent of half market rent. In effect the applicant has the option to vacate the property and collect rent from the respondent in as much as the respondent has the option to forego occupation and collect half market rent from the applicant. It is not claimed that the property will be disposed. In those circumstances, we are not persuaded that the applicant has demonstrated that the appeal will be rendered nugatory. 9.In the result, the application dated 31st July 2025 fails and is accordingly dismissed. The costs of the application shall be in the appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.S. GATEMBU KAIRU, FCIArb, CArb............................................JUDGE OF APPEALP. NYAMWEYA.........................................JUDGE OF APPEALA. O. MUCHELULE........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR