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Court of AppealDismissedCivil Application No. NAI. 360 of 2000 (177/2000 UR)

Zuleikha Mohamed Naaman v Gharib Suleiman Gharib [2001] KECA 246 (KLR)

Court of Appeal of Kenya
19 January 2001
AAA. M. AkiwumiPhilip Kiptoo TunoiP. K. TunoiMKM. Keiwua
319 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a custody order because the mother showed no evidence the appeal would be pointless without a stay.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal at Mombasa (Akiwumi, Tunoi and Keiwua, JJ.A.) on a single-judge-referred application for stay of execution pending appeal. The applicant, the mother, sought to stay a decision of the High Court at Mombasa (Commissioner Mrs. Khaminwa) dated 15 November 2000 in Guardianship Cause No. 2 of 1998, which granted custody of two boys, aged 12 and 13, to their father, the respondent. The court restated the usual twin test for stay: the intended appeal must be arguable, and the appeal, if successful, must be rendered nugatory if stay is not granted. It accepted that the appeal was not frivolous, but held that the nugatory limb failed. The children were not infants, there was no evidence that a successful appeal would be rendered nugatory, and the court saw no serious and lasting emotional debacle arising from the custody arrangement. The practical problems of the boys moving to new schools were not crucial or lasting enough to render a successful appeal nugatory. The application was dismissed with no order as to costs, and the court directed that the appeal be set down for hearing on a priority basis. The ruling binds subordinate courts on the requirement of demonstrating nugatory consequences with evidence before a stay can issue in custody matters.

Key legal issues

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Whether the nugatory test for stay was satisfied in a child custody appeal

Holding

The nugatory test was not satisfied: the children, aged 12 and 13, were not infants, and no evidence showed serious and lasting emotional or practical consequences that would render a successful appeal nugatory

Reasoning

The court accepted the appeal was not frivolous, but held that the custody change from mother to father would not produce serious and lasting emotional harm, and the practical problems of the boys moving to new schools would not be crucial or lasting. Absent evidence of nugatory consequences, stay must be refused even where the appeal is arguable.

p. 2

Legal principles established

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  • A stay pending appeal will be granted only where the intended appeal is arguable and, if stay is not granted, the appeal if successful would be rendered nugatory

Court orders

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  1. 1.The application for stay is dismissed with no order as to costs
  2. 2.The appeal be set down for hearing on a priority basis
On appeal from
High Court of Kenya at Mombasa
Guardianship Cause No. 2 of 1998
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal to grant stay of execution pending appeal (Civil Application No. NAI. 360 of 2000 (177/2000 UR))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zuleikha Mohamed Naaman v Gharib Suleiman Gharib [2001] KECA 246 (KLR)", Case Analysis (2001). Civil Application No. NAI. 360 of 2000 (177/2000 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/246/eng@2001-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.