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Court of AppealAllowedCivil Application No. 254 of 2017

J G M v G W G [2018] KECA 429 (KLR)

Court of Appeal of Kenya
27 July 2018
1,720 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped the sale of a family's properties and a Kshs 23 million costs demand until the husband's appeal is heard.

What this practically means

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Executive summary

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This is a single-judge-application ruling of the Court of Appeal at Nairobi (Waki, Warsame and Kiage, JJ.A) under rule 5(2)(b) of the Court of Appeal Rules, arising from a matrimonial property dispute between an estranged husband and wife. The respondent had filed an originating summons in 2008 seeking sale and partition of various properties as matrimonial property. The hearing proceeded before Musyoka, J on 23rd May 2013 without the applicant or his advocates being present, resulting in judgment granting the summons. The applicant's application to set aside the ex parte proceedings and judgment was dismissed by the ruling of 3rd February 2017 now the subject of the intended appeal. Following a party and party bill of costs of some Kshs 23,440,937 and a decree, the applicant sought stay of execution and injunction pending appeal, contending an arguable appeal and that execution would render it nugatory. The respondent opposed, arguing the applicant sought to stay a dismissal (a negative order) and that his remedy lay in a negligence suit against his former advocates. The Court, applying the twin principles summarised in Stanley Kangethe Kinyanjui v Tony Ketter, found the appeal arguable - notably whether the applicant was condemned unheard despite not being informed of the hearing date, a fundamental issue - and found the nugatory limb satisfied given the value of the properties, the matrimonial home where the children reside, and the exorbitant costs. The application was allowed, with the intended appeal to be filed within 45 days, fast-tracked, each party at liberty to apply, and costs in the intended appeal. The ruling does not disturb the High Court decision; it grants interim relief pending appeal and binds no lower court beyond the twin principles it reiterates.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the relief sought is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was arguable; the right to be heard on a cause or defence is a fundamental issue, and whether J was condemned unheard, and whether he was undeserving of the setting aside discretion, merited full consideration on appeal.

Reasoning

The Court observed that the High Court Judge made a finding that the advocate chose not to inform J of the hearing date, yet dismissed the setting aside application. Whether a party not informed of a hearing date should be condemned unheard is a fundamental issue of monumental standard, and the Court held such a point cannot be termed frivolous. It was also arguable whether J was a litigant of unserious or obstructive character.

p. 2
02

Whether the appeal would be rendered nugatory if stay were refused

Holding

Yes. The suit properties represented the entirety of the parties' known properties, included the matrimonial home where the children reside, and the costs demanded were about Kshs 23 million; executing such drastic and irreversible consequences pending appeal would render a successful appeal a mockery.

Reasoning

The properties were of substantial value and their sale would be a big blow should it turn out they should not have been sold. The matrimonial home housing the children of the marriage was listed for sale and G had not denied it. The demand of Kshs 23 million costs in a matrimonial matter was also arguably exorbitant. Drastic, irrecoverable and irreversible consequences should crystallise only after appeal rights are exhausted.

p. 2

Legal principles established

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  • On a rule 5(2)(b) application an applicant must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent the relief.
  • The arguability threshold requires at least one point that is not frivolous and calls for a response and a decision from the Court.

Court orders

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  1. 1.Stay of execution of the High Court ruling of 3rd February 2017 and of the decree and consequential processes granted as interim relief
  2. 2.The intended appeal to be filed within forty five (45) days of the date of the ruling
  3. 3.The intended appeal to be fast-tracked for hearing
  4. 4.Each party at liberty to apply
  5. 5.Costs to be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No. 35 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an applicant in order to succeed must show that he has an arguable appeal by which is meant an appeal that raises at least one legitimate point of grievance to be urged on appeal and which calls for a response from the respondent and a decision from the Court. It is enough that the said point is not frivolous.
p. 2Twin principles on rule 5(2)(b) applications - arguability
The right to be heard on a cause or defence is fundamental issue of monumental standard which cannot be wished away.
p. 2Natural justice - right to be heard
Ultimately, we are persuaded that this is a deserving case for us to grant the interim relief sought and we allow the application. The intended appeal shall be filed within forty five (45) days of the date hereof and shall be fast-tracked for hearing. Each party is at liberty to apply. Costs shall be in the intended appeal.
p. 2Disposition - final orders

Issues in the judgment

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minor

The judgment contains internally inconsistent dates for the High Court judgment: earlier stated as 26th September 2013, later as 26th September 2014.

minor

The affidavit dates are inconsistent: J's affidavit supporting the setting-aside application is described as sworn 30th September 2014, though the judgment had been rendered in September 2013, and G's opposing affidavit is described as sworn 28th October 2014.

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, "J G M v G W G [2018] KECA 429 (KLR)", Case Analysis (2018). Civil Application No. 254 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/429/eng@2018-07-27

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