STANLEY KAIYONGI MWENDA vs CYPRIAN KUBAI [2001] KECA 275 (KLR)
The bottom line
#The Court of Appeal refused to pause an inheritance ruling, finding the applicant never filed his appeal and his own conduct caused the missed hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal, i.e. an appeal which is not frivolous.
- 2.Whether, unless a stay is granted, the intended appeal, if successful, will be rendered nugatory.
Key legal issues
#Whether the applicant had an arguable appeal under Rule 5(2)(b)
The complaint that the applicant was not heard on his objection to the making of a grant would, in principle, be arguable, but on the record the judge was prepared to hear the objection and the applicant's own conduct made it impossible to hear it in his presence; the court declined to find the point particularly arguable.
The court accepted that a complaint of not being heard on an objection to a grant would, in principle, be arguable. It nevertheless examined the record and found that the judge had been prepared to hear the objection, but the applicant's own conduct made it impossible for the objection to be heard in his presence. While expressly not determining the issue finally, the court declined to characterise the point as particularly arguable and treated the other grounds raised by counsel as answerable in the same way. The absence of any lodged appeal despite ample time reinforced this conclusion.
The relationship between the arguable-appeal limb and the nugatory limb of the Rule 5(2)(b) test
The question whether an appeal will be rendered nugatory only arises where there is an arguable appeal whose success will be rendered nugatory; where there is no arguable appeal, the nugatory inquiry does not arise at all.
The court treated the two Rule 5(2)(b) conditions in sequence: the nugatory consideration is reached only where an arguable appeal exists whose success would be rendered nugatory. Having found no arguable appeal, it held that the question of the appeal being rendered nugatory did not arise, and dismissed the motion on that footing. This sequencing is a binding gloss on the twin principles: a stay applicant who fails on arguability need not address nugatory, and a court need not reach the second limb where the first fails.
Priority of objections to the making of a grant in succession proceedings
Once a valid objection to the making of a grant is on record, a court should deal with that objection first, whether the objection ultimately proves valid or invalid.
In agreeing with the applicant's premise, the court stated as a general rule of succession practice that once a valid objection to the making of a grant is on record, the court should deal with that objection first, whether the objection ultimately proves valid or invalid. The proposition underpinned the arguability of the applicant's complaint that he was not heard on his objection. However, it was not the operative basis of the dismissal, which rested on the absence of a particularly arguable appeal and the applicant's failure to lodge any appeal; it therefore stands as an endorsed principle rather than the ratio.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must satisfy the court that he has an arguable appeal, meaning an appeal which is not frivolous.
- The applicant must further satisfy the court that, unless a stay is granted, the intended appeal, if successful, will be rendered nugatory; but this second limb only arises where there is an arguable appeal.
- Once a valid objection to the making of a grant is on record in a succession cause, the court should deal with that objection first, whether the objection be valid or invalid.
Court orders
#- 1.The motion be and is hereby dismissed with costs to the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.Succ.C. No. 219 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution in an intended appeal)
Relief refused
#Stay of execution pending an intended appeal against the ruling and order of the High Court at Meru (Tuiyot J) dated 20 July 2000 in H.C.Succ.C. No. 219 of 1999
The court found no arguable appeal: the complaint that the applicant was not heard on his objection to the grant was not particularly arguable because the judge was prepared to hear it and the applicant's own conduct made that impossible; no appeal had been lodged despite sufficient time; and the nugatory limb does not arise absent an arguable appeal.
Costs
The motion is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are satisfied there is no merit in the motion before us and that being our view, we order that the motion be and is hereby dismissed with costs to the respondent.
The issue of the appeal being rendered nugatory only arises where there is an arguable appeal whose success will be rendered nugatory.
this being an application for stay under Rule 5(2)(b) of the Court's Rules, the applicant must satisfy us that:(i)he has an arguable appeal, i.e. an appeal which is not frivolous;
(ii)that unless a stay is granted, the intended appeal, if successful, will be rendered nugatory.
We agree that once a valid objection to the making of a grant is on record, a court should deal with that objection first, whether the objection be valid or invalid.
It seems to us that the applicant is not serious with his appeal. He has had more than sufficient time to lodge the appeal and it appears no appeal has been lodged.
the Judge was prepared to hear the objection but the conduct of the applicant himself seems to have made it impossible for the Judge to hear the objection in the presence of the applicant
Issues in the judgment
#The coram heading places the Court of Appeal at Nyeri and the application number carries the NAI (Nairobi) registry prefix, yet the ruling is dated and delivered at Nairobi - an internal inconsistency as to the station of delivery.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "STANLEY KAIYONGI MWENDA vs CYPRIAN KUBAI [2001] KECA 275 (KLR)", Case Analysis (2001). Civil Application No. NAI. 282 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/275/eng@2001-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.