https://new.kenyalaw.org/akn/ke/judgment/keca/2026/953

Gikonyo v Gikonyo (Civil Application E331 of 2025) [2026] KECA 953 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 953 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E331 of 2025 DK Musinga, J Mohammed & M Ngugi, JJA May 15, 2026 Between Robert Kamau Gikonyo Applicant and Agnes Wangechi Gikonyo Respondent (Being an application for stay of proceedings of the ruling of the High Court of Kenya at Nairobi, Milimani (E. K. Ogola, J.) dated 24th April 2025 in HC. Succ. Case No. 84 of 1999 Succession Cause 84 of 1999 ) Ruling Background 1.The application before this Court is the Notice of Motion dated 26th May 2025 expressed to be brought under rule 5(2)(b) of the Court of Appeal Rules. 2.By that application, Robert Kamau Gikonyo (the applicant) seeks the following orders:i.Spent.ii.That there be a stay of proceedings in Milimani HC SUCC No. 84 of 1999 pending the hearing and determination of the intended appeal; andiii.That the costs of the application be provided for.Agnes Wangechi Gikonyo is the respondent herein. 3.The application is predicated upon, inter alia, the grounds that there exists an intended appeal before this Court which directly affects the issues in Milimani HCSUCC No. 84; that a notice of appeal dated 29th April 2025 was issued and served on 6th March 2025; that the determination of the intended appeal will have a significant impact on the High Court proceedings in which the respondent has proposed the confirmation of grant in the undated summons for confirmation of the grant; that the confirmation of the grant is likely to affect the distribution of the estate; and that proceeding with such confirmation prior to the determination of the intended appeal would result in the estate of the deceased being distributed in accordance with the impugned ruling. 4.The applicant further contends that it is in the interest of justice that the said proceedings be stayed so as to preserve the estate in its current state and thereby prevent the intended appeal from being rendered nugatory, academic, and devoid of practical effect, as well as to avert irreparable loss and damage. 5.The application is supported by the applicant’s affidavit, wherein he depones, inter alia, that he is the 1st Administrator of the estate of the late Laban Gikonyo Kamau in Milimani HCSUCC No. 84 of 1999; that the respondent, in a proposed Summons for Confirmation of Grant, has expressed an intention to distribute the estate of the deceased; that there exists an intended appeal to be filed before this Court directly affecting the issues in the High Court; that the intended appeal raises substantial questions of both law and fact; that on 24th April 2025, the High Court (E. K. Ogola, J.) rendered a determination materially inconsistent with the judgment dated 12th March 2020 of the High Court (Ali-Aroni, J., as she then was) in HCSUCC No. 84 of 1999, thereby altering the composition of the distributable estate by excluding a substantial portion thereof on the basis that certain properties previously adjudged to form part of the estate no longer constituted part thereof; and that the intended appeal raises arguable grounds with a high likelihood of success. 6.The applicant further avers that the determination of the intended appeal will have a significant bearing on the confirmation of the grant, as it may alter the mode and scope of distribution of the estate. It is further contended that it is in the interest of justice that the High Court proceedings be stayed, pending the determination of the appeal, to enable this Court to first adjudicate upon the issues raised therein. The applicant asserts that, unless the stay is granted, there exists a real risk of irreparable harm, in that the estate assets may be distributed and dissipated in a manner incapable of reversal. 7.The applicant further contends that the assets constituting the estate had previously been identified and judicially determined by a judgment delivered on 12th March 2020. 8.It is further the applicant’s case that, by the ruling delivered on 24th April 2025, the High Court effectively departed from, and thereby overturned, a determination of a court of concurrent jurisdiction, thus giving rise to two conflicting decisions of the same court in respect of the assets comprising the estate. 9.Aggrieved by that ruling, the applicant filed the instant application and annexed a draft memorandum of appeal. It is contended that the intended appeal raises substantial issues of law and fact, particularly on account of the alleged omission of a significant portion of the estate in the impugned ruling. On that basis, the applicant urges this Court to grant a stay of proceedings so as to preserve the substratum of the dispute and prevent the intended appeal from being rendered nugatory. 10.Despite due service, no affidavit in reply or written submissions were filed on behalf of the respondent, and there was no representation on her behalf during the virtual hearing of the application. Submissions by counsel 11.The application was disposed of by way of written submissions filed by Messrs. J. N. Mbuthia & Co. Advocates, learned counsel for the applicant. Learned counsel submitted that the intended appeal is arguable as demonstrated in the draft memorandum of appeal; that the intended appeal challenges the dismissal of a summons dated 29th May 2023 on 13th February 2025, wherein the High Court held that distribution was limited to 2 assets, notwithstanding that an earlier judgment of the same court had included several additional assets; and that the applicant intends to seek reversal of that ruling and the allowance of the said application. 12.It was further submitted that the excluded properties ought properly to have been included to facilitate complete administration of the estate; that their exclusion exposes them to dealings outside the succession cause, thereby risking the applicant’s disinheritance; and that the loss sought to be prevented is not compensable by an award of damages. The applicant accordingly seeks stay of proceedings to ensure that the intended appeal is not rendered nugatory. Determination 13.We have considered the application, the grounds in support thereof, the submissions by counsel, the authorities cited and the applicable law. The jurisdiction of this Court under rule 5(2) (b) of this Court’s Rules is original, discretionary and guided by the interests of justice. In exercising this discretion, the Court must be satisfied as to the well- established twin principles, namely: first, that the appeal is arguable; and second, that unless the orders sought are granted, the appeal, if successful, will be rendered nugatory. 14.The principles for granting a stay of execution, injunction or stay of proceedings are well settled. For example, this Court, in the case of Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR, delineated the jurisdiction of this Court in such an application as follows:The jurisdiction of the Court under Rule 5(2)(b) aforestated, is original and discretionary, and it is trite law that to succeed an applicant has to show firstly, that his appeal or intended appeal is arguable, or put another way, it is not frivolous; and secondly, that unless he is granted a stay the appeal or intended appeal, if successful, will be rendered nugatory. Those are the guiding principles but these principles must be considered against the facts and circumstances of each case…” 15.In considering the twin principles set out above, we are cognizant that to benefit from the discretion of this Court, both limbs must be demonstrated to the Court’s satisfaction. 16.On the first principle, 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. See Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, where this Court described an arguable appeal in the following terms: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.viii).In considering an application brought under Rule 5(2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.” 17.We have considered the grounds set out in the motion and the draft memorandum of appeal. In our view it is arguable whether the High Court, being a court of concurrent jurisdiction, could properly render a decision that conflicts with an earlier determination concerning the assets of the estate. An arguable point is not necessarily one that must succeed, but merely one that is deserving of consideration by the Court. 18.On the nugatory aspect, which is whether the appeal, should it succeed, would be rendered nugatory if we decline to grant the orders sought, in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra) this Court stated that:“ix).The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.x).Whether or not an appeal will be rendered nugatory 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 party aggrieved”. 19.In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties, and each case has to be determined on its merits. In the instant application, the applicant’s main contention is that if the proceedings in the High Court are permitted to proceed on the basis of the impugned ruling, the intended appeal will be overtaken by events and rendered academic. 20.We have considered that submission. Proceedings relating to the administration of estate assets are, by their nature, sensitive and may lead to irreversible outcomes. In our view, in the circumstances of this case, the concern raised by the applicant is not remote or speculative, but presents a real risk that the intended appeal may be rendered nugatory if the orders sought are not granted. 21.The upshot is that the applicant has satisfied the twin principles governing the grant of relief under rule 5(2)(b) of the Court of Appeal Rules. 22.Accordingly, the Notice of Motion dated 26th May 2025 is hereby allowed. 23.There shall be a stay of proceedings in Milimani HCSUCC No. 84 of 1999 pending the hearing and determination of the intended appeal. 24.The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.D. MUSINGA (PRESIDENT).....................................JUDGE OF APPEALJAMILA MOHAMMED.....................................JUDGE OF APPEALMUMBI NGUGI.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR