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Court of AppealDismissedCivil Application No. 124 of 2019

Devna Om Parkash Pandit & another v Rajib Bali [2019] KECA 49 (KLR)

Court of Appeal
11 October 2019
2,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed two nieces' bid to pause an elderly relative's guardianship ruling, finding the appeal arguable but refusing relief because it would achieve nothing.

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 (Waki, Musinga and Gatembu Kairu, JJ.A) on a single application under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution and injunction pending an intended appeal from the judgment of Abida Ali-Aroni, J. of 28th February 2019. The High Court had, in consolidated Petitions Nos. 29 and 63 of 2017 brought under the Mental Health Act and Articles 45 and 47 of the Constitution, appointed Rajib Bali, the only surviving son of 95-year-old Indra Bali, as her guardian with full control and management of her estate, and directed that she be returned to her home country, the United States. The applicants, Indra's nieces, sought to restrain the respondent from acting as guardian and from managing her Kenyan estate, particularly a Diamond Trust Bank account, pending their intended appeal. The prayer for an injunction restraining the respondent from removing Indra from Kenya was abandoned, she having already travelled to the US on 6th March 2019. The Court found the intended appeal arguable but held that the applicants had failed to show it would be rendered nugatory: Indra was already in the US under the respondent's care, and it would be undesirable and futile to sever the guardianship order from the order granting management of her estate needed for her care. The application was dismissed with costs to the respondent. The High Court judgment itself was not disturbed by this ruling.

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, if the appeal subsequently succeeds, it would be rendered nugatory unless stay of execution and injunction are granted pending the appeal

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable and not frivolous, since the applicants raised issues such as whether the High Court failed to consider evidence of the respondent's unsuitability and the best interests of Indra

Reasoning

Counsel argued the High Court failed to evaluate the pleadings and evidence, ignored evidence of the respondent's unsuitability, granted unpleaded orders and erred in dismissing the applicants' petition. Guided by settled authority that an arguable appeal need not succeed but must merit full argument, the Court found the grounds raised were not frivolous and were deserving of the Court's consideration at the hearing of the intended appeal.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay and injunction are not granted

Holding

The applicants failed to demonstrate nugatory consequences; the application fails on this limb

Reasoning

Indra had already travelled to the US under the respondent's care following the judgment. The Court held it could not, at that stage, sever the guardianship order from the order granting control and management of her estate, since the respondent needed access to her resources to care for her. Given Indra's presence in the US, granting the orders would be futile and the Court does not make orders in vain.

p. 3

Legal principles established

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  • To succeed on an application under Rule 5(2)(b) for stay or injunction pending appeal, an applicant must demonstrate both that the intended appeal is arguable and that, if the application is declined and the appeal succeeds, the success would be rendered nugatory
  • An arguable appeal is not one that must necessarily succeed, but one which ought to be argued fully before the Court or one that is deserving of the Court's consideration
  • The Court should not make orders in vain; where events have overtaken the relief sought and it would be futile to grant it, the Court will decline

Court orders

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  1. 1.The applicants' application dated 16th April 2019 and presented to the Court on 18th April 2019 is dismissed with costs to the respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya, Family Division at Nairobi
High Court Petition No. 29 of 2017 (consolidated with High Court Petition No. 63 of 2017)
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Injunction restraining the respondent from taking Indra Bali out of Kenya

Abandoned as overtaken by events; Indra had already left Kenya for the US on 6th March 2019

p. 2

Stay of execution restraining the respondent from acting as guardian and from managing Indra Bali's estate pending the intended appeal

The intended appeal is arguable, but the applicants failed to demonstrate that its success would be rendered nugatory; Indra is already in the US under the respondent's care and it would be futile and undesirable to sever the guardianship order from the order granting management of her estate needed to care for her

p. 3

Costs

The application fails and is dismissed with costs to the respondent

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.

For an applicant to succeed he must not only show his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
p. 3Twin principles for relief under Rule 5(2)(b)
an arguable appeal is not one that must necessarily succeed, but one which ought to be argued fully before the Court or one that is deserving of the Court’s consideration
p. 3Meaning of an arguable appeal
It would be undesirable, in the interim, to restrain the respondent from having access to Indra’s resources with which to care for her. Furthermore, given that Indra is already in the US, it seems to us that it would be futile to grant the orders sought.
p. 3Futility of granting orders overtaken by events
The result is that applicants’ application dated 16 th April 2019 and presented to this Court on 18 th April 2019 fails and is hereby dismissed with costs to the respondent.
p. 3Final orders and disposition

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, "Devna Om Parkash Pandit & another v Rajib Bali [2019] KECA 49 (KLR)", Case Analysis (2019). Civil Application No. 124 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/49/eng@2019-10-11

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