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Court of AppealDismissedCivil Application No. 47 of 2017· [2018] KECA 382 (KLR)

Njeru Njamiu & 2 others v Njeru Njamiu & 2 others [2018] KECA 382 (KLR)

Court of Appeal of Kenya
31 July 2018
PKP.O. KiageFSF. SichaleSKS. ole Kantai
1,547 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a succession ruling because the applicants had already taken part in the case and agreed to the family land distribution.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kiage, Sichale and ole Kantai, JJ.A.) on a Notice of Motion under Rules 47(1) and 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a High Court of Kenya at Embu ruling delivered by F.M. Muchemi, J. on 7th February 2017 in Succession Cause No. 50 of 2003, in which the applicants' summons for revocation or annulment of a grant issued to the 1st and 2nd respondents was dismissed. The applicants, members of the second house of the deceased's family, alleged the subject land belonged to the clan, that 7 acres had been held for their house, and that the respondents had taken that land and sold portions to third parties, threatening over 60 family members with eviction. The Court restated the well-known twin principles for stay applications, extensively reproducing the summary in Stanley Kangethe Kinyanjui v Tony Ketter: an applicant must show an arguable appeal and that the appeal would be rendered nugatory absent stay. The Court found that the applicants had fully participated in the High Court proceedings, that their mother's protest was abandoned and they filed none, and that the grant resulted from the whole family's agreement. Concluding there was no arguable point in the intended appeal, the Court did not consider the nugatory limb and dismissed the Motion, with each party bearing their own costs given the family relationship. The High Court's ruling was not disturbed; this ruling binds subordinate courts on the twin-principles framework for rule 5(2)(b) applications.

Key legal issues

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Whether the intended appeal was arguable

Holding

The intended appeal was not arguable because the applicants fully participated in the succession proceedings, were heard on protest, and the grant reflected the family's agreed distribution.

Reasoning

The Court applied the settled twin principles for rule 5(2)(b) applications as restated in Stanley Kangethe Kinyanjui v Tony Ketter. It examined paras 20 and 21 of the High Court ruling showing the applicants' mother's protest was abandoned and that the applicants themselves never filed a protest. Having participated throughout, they could not challenge a grant resulting from the whole family's agreement. Finding no arguable point, the Court did not consider the nugatory limb.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent stay; failure on the first limb disposes of the application without the second being considered.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Each party to bear their own costs of the Motion

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 47(1)
  • Court of Appeal RulesRule 75

Cases cited (8)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 2 Others
    [2013] eKLR
  • RUBEN & 9 OTHERS v NDERITU & ANOTHER
    [1989] KLR 365
  • HALAI & ANOTHER v THORNTON & TURPIN (1963) LTD
    [1990] KLR 365
  • DAVID MORTON SILVERSTEIN v ATSANGO CHESONI
    Civil Application No. NAI 189 of 2001
  • DAMJI PRAGJI MANDAVIA v SARA LEE HOUSEHOLD & BODYCARE (K) LTD
    Civil Application No. NAI 345 of 2004
  • JOSEPH GITAHI GACHAU & ANOTHER v PIONEER HOLDINGS (A) LTD & 2 OTHERS
    Civil Application No. 124 of 2008
  • RELIANCE BANK LTD v NORFLAKE INVESTMENTS LTD
    [2002] 1 E.A. 27
  • INTERNATIONAL LABORATORY FOR RESEARCH ON ANIMAL DISEASES v KINYUA
    [1990] KLR 403
On appeal from
High Court of Kenya at Embu
Succession Cause No. 50 of 2003 (In the Matter of the Estate of Kiura Katheri alias Kiura Njamiu (deceased))
Jurisdiction invoked
Rules 47(1) and 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, "Njeru Njamiu & 2 others v Njeru Njamiu & 2 others [2018] KECA 382 (KLR)", Case Analysis (2018). Civil Application No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/382/eng@2018-07-31

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