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Court of AppealDismissedCivil Application No. 178 of 2018 (UR 146/2018)· [2019] KECA 806 (KLR)

Wallace Kogi Mwaura & 1 other v Tirus Kamau Mburu (as the administrator ad litem of the estate of Miriam Muthoni Mburu (deceased) & 1 other

Court of Appeal
8 March 2019
EGE.M. GithinjiAVAlnashir VisramJMJ. Mohammed
1,709 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a confirmed probate, ruling a will gifting property the deceased didn't own stays valid—only that gift fails.

What this practically means

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Executive summary

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The applicants sought an order of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules of the judgment of Musyoka, J. dated 4th May 2018 and of the confirmed grant of probate dated 23rd May 2018, in an intended appeal against the dismissal of their application to revoke a grant of probate made over the estate of their mother, who died testate by a will dated 30th November 1988. The applicants contended that the deceased lacked testamentary capacity and had held the suit parcel, Gatamiayu/Kamuchege/415, in trust for them; that the will was not witnessed by two persons; and that without stay they would be disinherited and the appeal rendered nugatory. The respondents maintained that the will was validly executed as attested by the drafting advocate, that the applicants had already been provided for, and that the balance of convenience favoured refusal since the grant stood confirmed and no disposal of the parcel was intended. The Court restated the twin principles governing Rule 5(2)(b) applications - an arguable appeal and nugatory-ness - citing Reliance Bank v Norlake Investments and Peter Paul Mburu Ndururi. It held the intended appeal not arguable because the claim, at its highest, could only invalidate a specific gift, not the will itself. On the nugatory limb, the Court found the balance of convenience against the applicants: the grant had been confirmed, and the applicants had not shown they could not be compensated by damages, per Stanley Kangethe Kinyanjui v Tony Ketter. The application was dismissed, with costs to abide the outcome of the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not arguable; the applicants' claim concerned the suit parcel, the effect of which would be invalidation of the gift, not the will.

Reasoning

The court declined to make final determinations but found the claim related to a parcel that, if not part of the estate, would only lead to failure of that gift rather than nullification of the will. On that footing the appeal lacked arguability, and the court was careful not to embarrass the full court hearing the intended appeal.

p. 2
02

Nugatory-ness and balance of convenience

Holding

The appeal would not be rendered nugatory; the balance of convenience favoured refusal since the grant was confirmed and damages would suffice.

Reasoning

The grant of probate had already been confirmed, so staying distribution would not benefit the estate or beneficiaries. The applicants had not shown they could not be compensated by damages should the intended appeal succeed, drawing on Stanley Kangethe Kinyanjui v Tony Ketter.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability and nugatory-ness; both must be met.
  • A will disposing of property that does not belong to the testator is not invalidated; only the gift fails.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application shall abide by the outcome of the intended appeal
On appeal from
High Court of Kenya at Nairobi
H.C. Succession Cause No. 3002 'A' of 2003
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, "Wallace Kogi Mwaura & 1 other v Tirus Kamau Mburu (as the administrator ad litem of the estate of Miriam Muthoni Mburu (deceased) & 1 other", Case Analysis (2019). Civil Application No. 178 of 2018 (UR 146/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/806/eng@2019-03-08

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