In Re Estate of Leo Apopa (Deceased) [2018] KECA 224 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a partial stay in a family estate dispute, but widows kept their life interest in two prime properties.
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 intended appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The Court found the memorandum of appeal raised arguable points, including whether the mode of distribution of the estate was carried out in accordance with the law
The Court applied the settled test under Rule 5(2)(b) that an arguable ground need not succeed but must not be frivolous, and a single arguable point suffices. It deliberately refrained from going into the merits, which it said are the preserve of the bench hearing the main appeal, and was satisfied the applicants had crossed the arguability threshold.
Whether the intended appeal would be rendered nugatory if stay is not granted
The Court found the appeal would not be rendered nugatory because the impugned orders favoured the surviving widows and would cause no prejudice to the applicants even if the appeal succeeded
Applying Reliance Bank Ltd v Norlake Investments Ltd, the Court weighed the conflicting claims on the peculiar facts. It noted the distribution orders gave the widows a life interest with the properties ultimately shared equally among the five houses, so no prejudice to the applicants would arise; accordingly the nugatory limb failed and Rule 5(2)(b) relief could not be granted in full.
Legal principles established
#- In dealing with a Rule 5(2)(b) application the Court of Appeal exercises original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion
- An arguable ground of appeal need not succeed; a single arguable ground suffices to meet the threshold
- Both limbs of Rule 5(2)(b) - arguability and nugatory aspect - must be satisfied before stay is granted
Court orders
#- 1.Dismissed the application in respect of stay of execution of the order granting a life interest of Kisumu/Municipality 5/75 and Kisumu/Muhoroni/1098 to the three surviving widows and the incomes accruing therefrom in equal shares
- 2.Granted an order staying the delivery by Thomas Ochieng Apopa of title documents in his possession relating to the estate of the deceased and the list of unadministered assets, pending the hearing and determination of the appeal, on condition that he does not sell, charge or in any way dispose of the properties and assets
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- H.C. Succession Cause No. 370 of 2006
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Relief refused
#Stay of execution of the order granting the surviving widows a life interest in Kisumu/Municipality 5/75 and Kisumu/Muhoroni/1098 and their incomes
The applicants failed to demonstrate that the appeal would be rendered nugatory if the stay was not granted, as the orders in the impugned ruling were in favour of the surviving widows and would cause no prejudice to the applicants even if the appeal succeeded
Costs
This being a family matter, there shall be no order as to costs.
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.
That in dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge's discretion to this Court.
an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous; a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable.
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
Rule 5(2)(b) of this Court's Rules requires that both limbs be satisfied.
i) We dismiss the application as it relates to stay of execution of the order granting a life interest of KISUMU/MUNICIPALITY 5/75 and KISUMU/MUHORONI/1098 to the 3 surviving widows of the deceased
Issues in the judgment
#The judgment inconsistently spells the name of one of the widows, variously rendered 'DOMTILA ADUDA APOPA', 'DOMTILLA ADUDA' and 'DOMITILLA ADUDA'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In Re Estate of Leo Apopa (Deceased) [2018] KECA 224 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 72 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/224/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.