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Court of AppealDismissedCivil Application No. 86 of 2016· [2017] KECA 595 (KLR)

Elizabeth Wairimu Thimba & 2 others v Winfred Njogu Mbuthia & 2 others [2017] KECA 595 (KLR)

Court of Appeal
24 March 2017
1,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to stop the sale or transfer of family land because the applicants failed to meet the two key tests for emergency appeal relief in Kenya.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Visram, Karanja and G.B.M. Kariuki JJ.A) delivered on 24th March 2017 in a notice of motion dated 25th February 2016 brought under rule 5(2)(b) of the Court of Appeal Rules. The applicants, who had lost before the High Court (Ndungu J) on 16th February 2016 in an application for leave to appeal against a ruling of Mulwa J declining to enlarge time to appeal against the distribution of the estate in H.C. Succession Cause No. 81 of 2002 (Estate of Teresia Wanjiru Wangera), sought an injunction restraining the respondents from dealing with Bahati/Wendo Block 2/60 (Ruguru Farm), Nakuru Municipality Block 26/13 and Nakuru Municipality Block 26/4 pending their appeal, as well as leave to appeal against Mulwa J's ruling. The court restated the settled twin principles governing rule 5(2)(b) applications, drawing on Butt v. Rent Restriction Tribunal and Kenya Shell Ltd v. Kabiru: the applicant must show an arguable appeal and that the appeal would be rendered nugatory if the order sought is not granted. The court held both limbs unsatisfied: the applicants never gave a notice of appeal against Mulwa J's order, which therefore remains unchallenged, and the judgment of Emukule J determining beneficiaries and distributing the estate remains unimpugned, so the success of any appeal would not be rendered nugatory. The court also noted the applicants' dilatoriness. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the twin principles for relief under rule 5(2)(b) were satisfied

Holding

The application failed on both limbs. The appeal was not shown to concern the determination of beneficiaries and distribution of the three properties, and even if the applicants' appeal succeeded, the judgment of Emukule J would remain unimpugned, so the appeal would not be rendered nugatory.

Reasoning

The applicants never gave a notice of appeal against Mulwa J's ruling declining to enlarge time, so that order remains unchallenged. The underlying judgment of Emukule J, which determined beneficiaries and distributed the estate, also remains unimpugned. Granting the injunction would therefore be futile: success in the intended appeal would not revive the applicants' position, and the nugatory limb fails. The court also noted the applicants' dilatoriness contributed to their predicament.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles: first, that the appeal is arguable, and secondly, that if the order sought is not granted the appeal, if successful, would be rendered nugatory
  • A single arguable point suffices to establish arguability of an appeal under rule 5(2)(b)
  • The court considering arguability under rule 5(2)(b) should not delve deeply into the merits of the intended appeal

Court orders

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  1. 1.Dismissal of the notice of motion dated 25th February 2016
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 75

Cases cited (2)

  • Butt v. Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd v. Kabiru & Another
    [1986] KLR 410
On appeal from
High Court of Kenya, Nairobi
H.C. Succession Cause No. 81 of 2002 (Estate of the Late Teresia Wanjiru Wangera, deceased)
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, "Elizabeth Wairimu Thimba & 2 others v Winfred Njogu Mbuthia & 2 others [2017] KECA 595 (KLR)", Case Analysis (2017). Civil Application No. 86 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/595/eng@2017-03-24

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