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Court of AppealDismissedCivil Application No. 41 of 2006· [2006] KECA 255 (KLR)

Fresiah Mugure Maina & 3 Others v Joseph Tobiko Pertet & Another

Court of Appeal of Kenya
5 May 2006
ROR.S.C. OmoloEOE.O. O'KubasuWDW.S. Deverell
1,259 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a will ruling because the family offered no real evidence the appeal would be pointless without one.

What this practically means

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Executive summary

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The four applicants sought a stay of execution under rule 5(2)(b) of the Court of Appeal Rules of a High Court ruling by Koome, J. dated 3rd February 2006 in Succession Cause No. 1525 of 2000 (Estate of Maina Ole Peret). The High Court had upheld the validity of a written will propounded by the respondents, who had petitioned for probate, and had made provision for the 1st applicant of one acre and Shs.100,000/=. The applicants, the widow and sons of the deceased, had objected that the deceased lacked testamentary capacity. The Court of Appeal (Omolo, O'Kubasu and Deverell, JJA) restated the settled jurisdiction under rule 5(2)(b) as original and discretionary, governed by the twin principles of arguability and nugatory effect. Without deciding arguability, the court assumed it in the applicants' favour but found the nugatory limb unsatisfied: there was no evidence that any beneficiary intended to dispose of their share of the land, only counsel's bare assertion, and notably the 1st applicant was herself the beneficiary of the order sought to be stayed. The application was dismissed with costs abiding the intended appeal, the court being mindful this was a family dispute. The judgment binds lower courts on the requirement of concrete evidence of nugatory effect, not mere assertion, in stay applications.

Key legal issues

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01

Twin principles for stay under rule 5(2)(b)

Holding

An applicant must show an arguable appeal and that the appeal would be rendered nugatory absent a stay; failure on the nugatory limb is fatal

Reasoning

The court restated the settled test from Githunguri v Jimba and related authorities. Even assuming arguability, the applicants produced no evidence that beneficiaries intended to dispose of their shares; the 1st applicant was herself the beneficiary of the order sought to be stayed, so refusal could not render the appeal nugatory.

p. 2
02

Burden of proof on objectors to a will

Holding

The burden of proving that a will was not properly drawn, executed, or that the deceased lacked capacity lies on the objectors

Reasoning

The High Court had held that objectors ought to have summoned the drafting advocate for cross-examination or adduced handwriting expert evidence, and the medical report did not certify lack of mental capacity. The Court of Appeal noted this reasoning but expressly avoided expressing views on the appeal's merits.

p. 2

Legal principles established

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  • Jurisdiction under rule 5(2)(b) is original and discretionary, and requires satisfaction of the twin principles of an arguable appeal and nugatory outcome

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application shall abide the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C. Succ. Cause No. 1525 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Fresiah Mugure Maina & 3 Others v Joseph Tobiko Pertet & Another", Case Analysis (2006). Civil Application No. 41 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/255/eng@2006-05-05

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