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Court of AppealAllowedCivil Application No. NAI 323 of 2018 (UR 261/2018)· [2019] KECA 676 (KLR)

Kennedy Kariuki Mwangi v Peter Njomo Mwangi [2019] KECA 676 (KLR)

Court of Appeal
5 April 2019
RNR. N. NambuyeDMD. K. MusingaSKS. Gatembu Kairu
1,304 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped a succession case so a disputed Kitengela plot stays intact while an appeal over an oral will is heard.

What this practically means

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Executive summary

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The applicant, Kennedy Kariuki Mwangi, sought an order under Rule 5(2)(b) of the Court of Appeal Rules staying further proceedings in Kajiado HC Succession Cause No. 17 of 2017 pending his intended appeal against a High Court ruling of 3rd October 2018 (Reuben Nyakundi, J) dismissing his petition under Rule 13 of the Probate and Administration Rules for proof of an oral will by which he claimed the deceased, Agnes Nyambura Githinji, bequeathed to him Plot No. 65 Kitengela. The High Court had held that the alleged utterances did not meet the threshold in section 9 of the Law of Succession Act for an enforceable oral will. Before the Court of Appeal (Nambuye, Musinga and Gatembu Kairu, JJ.A), the applicant argued the ruling was contradictory and considered extraneous matters, and that distribution of the property before the appeal would render the appeal futile. The respondent countered that the appeal was unarguable, that the oral will claim was raised too late, and that the whole estate was intestate; he alternatively sought preservation of rental income. Applying the settled twin principles - arguability and nugatory effect - the Court found a single arguable issue sufficed and the appeal was arguable. On the nugatory limb, it held the property should be preserved. It allowed the application, staying proceedings in the succession cause pending the appeal, on conditions that all rents from Plot No. 65 Kitengela be deposited in a joint interest-earning account in the names of the parties' advocates and that the applicant file and serve the memorandum and record of appeal within 45 days; in default, the stay stands automatically discharged. Costs of the application were made to abide the outcome of the appeal. The ruling binds subordinate courts and the High Court on the applicable Rule 5(2)(b) principles.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable because the applicant raised issues about the Judge considering extraneous matters and making contradictory findings on the alleged oral will

Reasoning

The draft memorandum of appeal asserted that the Judge considered extraneous matters outside section 9 of the Law of Succession Act and made contradictory findings on the deceased's utterances. Applying the settled standard that an arguable appeal need not succeed and a single arguable issue suffices, the Court found the appeal not frivolous.

p. 2
02

Whether the intended appeal would be rendered nugatory without a stay

Holding

The appeal would be rendered nugatory if the suit property were distributed before the appeal was heard, justifying preservation of the property by conditional stay of proceedings

Reasoning

The applicant maintained the property had been bequeathed to him by oral will and did not form part of the intestate estate. Distribution before the appeal would render it futile. The Court agreed there was merit in preserving the property, granted a stay of proceedings on conditions: rents to be deposited into a joint interest-earning account and the record of appeal filed within 45 days, failing which the stay stands automatically discharged.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if the order sought is not granted
  • An arguable appeal need not necessarily succeed; a single arguable issue suffices
  • The nugatory test asks whether what is sought to be stayed is reversible or, if not, whether damages would reasonably compensate the aggrieved party

Court orders

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  1. 1.Stay of proceedings in Kajiado HCSC No. 17 of 2017 pending the hearing and determination of the appeal from the ruling of 3rd October 2018
  2. 2.All rent derived from Plot No. 65 Kitengela to be deposited in a joint interest-earning bank account in the names of the advocates for the parties, effective from delivery of the ruling
  3. 3.Applicant to file and serve the memorandum and record of appeal within 45 days from delivery of the ruling
  4. 4.Stay of proceedings to stand automatically discharged in default of compliance with either condition
  5. 5.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Probate and Administration RulesRule 13
  • Law of Succession ActSection 9

Cases cited (4)

  • Ishmael Kagunyi Thande v Housing Finance of Kenya Limited
    [2007] eKLR
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (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
  • Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi
HC Succession Cause No. 17 of 2017 (Kajiado)
Jurisdiction invoked
Rule 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, "Kennedy Kariuki Mwangi v Peter Njomo Mwangi [2019] KECA 676 (KLR)", Case Analysis (2019). Civil Application No. NAI 323 of 2018 (UR 261/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/676/eng@2019-04-05

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