Devna Om Parkash Pandit & another v Rajib Bali [2019] KECA 49 (KLR)
The bottom line
#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
#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, if the appeal subsequently succeeds, it would be rendered nugatory unless stay of execution and injunction are granted pending the appeal
Key legal issues
#Whether the intended appeal is arguable
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
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.
Whether the intended appeal would be rendered nugatory if stay and injunction are not granted
The applicants failed to demonstrate nugatory consequences; the application fails on this limb
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
The application fails and is dismissed with costs to the respondent
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.
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.
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
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.