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Court of AppealAllowedCivil Application No. 42 'A' of 2015· [2016] KECA 536 (KLR)

Yunes Kerubo Oruta & another v George Kombo Oruta & another [2016] KECA 536 (KLR)

Court of Appeal
27 May 2016
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,775 words in judgment
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The bottom line

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The Court of Appeal paused a High Court succession ruling in Kisii, letting a widow's challenge proceed before anyone acts on the estate.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Kisumu (Musinga, Gatembu and Murgor, JJ.A) on a notice of motion dated 18th August 2015 brought under rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of the judgment and orders of the High Court at Kisii (Nagillah, J) of 3rd July 2015 in Kisii Succession Cause No. 169 of 2013. The High Court had dismissed the applicants' petition for letters of administration intestate for the estate of Jameson Oruta Oroni, holding that the widow and daughter were not fit and proper persons to administer the estate because they had intermeddled with it, declared transfers made since the death null and void, prohibited dealings in the deceased's property, and authorised the 1st respondent, the deceased's son, to petition for the grant. The applicants filed a notice of appeal and sought a stay pending the intended appeal. The Court restated the settled twin principles for a rule 5(2)(b) application: the intended appeal must be arguable, and the appeal must be rendered nugatory if stay is denied. It found the applicants' complaints - including that the Judge ordered the 1st respondent to petition for the grant to the exclusion of the widow who ordinarily has priority, and made far-reaching orders beyond what was before him - were not frivolous. Applying the principle that the object of rule 5(2)(b) is preservation of the subject matter, the Court allowed prayer (a) and stayed the High Court judgment and orders pending the appeal. Costs of the application were to abide the outcome of the appeal. The High Court judgment itself was not disturbed; the ruling is interlocutory.

Key legal issues

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01

Whether the twin principles for grant of stay under rule 5(2)(b) were satisfied

Holding

The Court found the applicants' complaints were not frivolous and that the circumstances warranted a stay of the High Court judgment and orders pending the intended appeal.

Reasoning

The Court cautioned itself against expressing concluded views on matters for the substantive appeal. It held that the applicants' complaints, including the exclusion of the widow from petitioning for the grant despite her priority, were not frivolous. Applying the settled test of arguability and nugatory-ness, and the object of rule 5(2)(b) as preservation of the subject matter to ensure just and effective determination of appeals, it found stay warranted and allowed prayer (a) of the application.

p. 4

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the order sought is not granted, the appeal will be rendered nugatory.
  • An arguable appeal need not be one that will succeed; it need only merit the Court's consideration.

Court orders

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  1. 1.Stay of the judgment and all orders of the High Court at Kisii made on 3rd July 2015 in Succession Cause No. 169 of 2013 pending the determination of the intended appeal
  2. 2.Costs of the application to abide by the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Ishmael Kagunyi Thande v HFCK
    Civil Application No. Nai 157 of 2006
  • Dennis Mogambi Mong'are vs. Attorney General & others
    [2012] eKLR
  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
On appeal from
High Court of Kenya at Kisii
Succession Cause No. 169 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending determination of an intended appeal)

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, "Yunes Kerubo Oruta & another v George Kombo Oruta & another [2016] KECA 536 (KLR)", Case Analysis (2016). Civil Application No. 42 'A' of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/536/eng@2016-05-27

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