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Court of AppealDismissedCivil Application No. NAI. 294 of 2018 (UR 235/2018)

Amina Shiraz Yakub v David Baburam Jagatram [2019] KECA 862 (KLR)

Court of Appeal
8 March 2019
3,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause succession proceedings over a Ksh. 60 million estate because the widow could not prove her appeal would be wasted without a stay.

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 (Githinji, Sichale and Otieno-Odek, JJA) on a Notice of Motion dated 18th October 2018 by Amina Shiraz Yakub, seeking stay of a ruling and orders of the High Court (A. Aroni J.) dated 4th October 2018 in HC Succession Cause No. 325 of 2016, and stay of further proceedings in that cause, pending an intended appeal. The applicant, a widow facing a murder charge over the death of her husband, was appointed jointly with her father-in-law as administrators of the estate. The High Court stayed confirmation and distribution of the grant pending the criminal case and directed the parties to agree on a reputable asset management company to manage cash assets of over Ksh. 60 million, effectively creating a third-party administrator. The applicant argued the orders violated the presumption of innocence under Article 50(2) of the Constitution and misapplied Section 35 of the Succession Act. The Court, applying the twin Rule 5(2)(b) tests, found the intended appeal arguable - identifying the judge's treatment of Section 35 and the justification for a third administrator as arguable points - but held that the applicant failed to demonstrate the appeal would be rendered nugatory, since administration expenses must be charged to the estate regardless of who administers it, and the applicant failed to show the judge erred in exercising her discretion. The court rejected the respondent's technical objection that failure to annex the impugned order was fatal, and discussed the slayer or forfeiture rule embodied in Sections 96(1) and (2) of the Succession Act, noting the presumption of innocence still applies. The application was dismissed with costs.

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 under Rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether the intended appeal would be rendered nugatory if the stay orders sought are not granted
  3. 3.Whether the failure to annex the impugned order to the supporting affidavit rendered the application fatally defective

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable; two arguable points stood out - the judge's consideration of Section 35 of the Succession Act and the justification for a third administrator.

Reasoning

The court perused the draft memorandum of appeal and noted that only one arguable point need be demonstrated. It identified two: whether the judge erred in her consideration of Section 35 of the Succession Act, and whether there was justification for appointing a third administrator. The first limb of the Rule 5(2)(b) test was therefore satisfied.

p. 5
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The applicant failed to discharge the burden of demonstrating nugatory aspect; administration expenses must be charged to the Estate regardless of who the administrator is.

Reasoning

The applicant alleged that appointment of a third administrator would render the appeal nugatory because of irrecoverable costs. The court held that administration expenses must be charged to the estate notwithstanding the identity of the administrator, so the appeal could not be rendered nugatory. The applicant also failed to show the judge erred in exercising her discretion, applying Mbogoh & Anor vs Shah. The second limb of the test was not satisfied.

p. 5
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The slayer or forfeiture rule in succession law

Holding

The slayer and forfeiture rule is incorporated in Sections 96(1) and (2) of the Succession Act; a murderer cannot inherit from or benefit from the estate of the person they killed, and conviction of murder is sufficient evidence.

Reasoning

The court canvassed comparative authorities including In the Estate of Crippen, Cleaver vs Mutual Reserve Fund Life Association, Mata Badal Singh and Re Pedersen, and held the rule is embodied in Sections 96(1) and (2) of the Succession Act, Cap 160. While the applicant faces a murder charge, the presumption of innocence under Article 50(2) still applies until she is adjudged otherwise.

p. 4
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Whether failure to annex the impugned order is fatal

Holding

No; the court declined the respondent's technical objection, holding that the era of technical justice is over.

Reasoning

The respondent objected that the order sought to be stayed had not been attached to the supporting affidavit, rendering the application fatally defective. The court rejected the objection, observing that failure to attach an order or decree appealed against no longer renders an application or appeal fatal.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory absent stay; the burden of proving the nugatory aspect rests on the applicant.
  • Demonstration of even one arguable point suffices to establish the first limb of the Rule 5(2)(b) test.
  • The Court of Appeal is no longer a technical court; failure to attach the order or decree appealed against does not render an application or appeal fatal.
  • The Court of Appeal will not interfere with the exercise of discretion by a trial court unless the decision is clearly wrong.

Court orders

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  1. 1.The Notice of Motion dated 18th October 2018 is dismissed
  2. 2.The applicant to pay the costs of the application

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 at Nairobi
HC Succession Cause No. 325 of 2016
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules

Relief refused

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Stay of the ruling and orders issued on 4th October 2018 pending the hearing and determination of the intended appeal

The applicant failed to satisfy the second limb of the Rule 5(2)(b) test - that the appeal would be rendered nugatory if stay is not granted

p. 5

Stay of further proceedings in the High Court Succession Cause No. 325 of 2016 pending the hearing and determination of the intended appeal

Same failure to demonstrate nugatory aspect; the applicant also failed to show the trial judge erred in the exercise of her discretion

p. 5

Costs

The Notice of Motion dated 18th October 2018 has no merit and is hereby dismissed with costs.

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.

In the final analysis, we arrive at the conclusion the Notice of Motion dated 18th October 2018 has no merit and is hereby dismissed with costs.
p. 5Final orders - dismissal of the application with costs
Accordingly, the applicant has not satisfied the second limb for grant of a stay order under Rule 5(2) (b) of the Rules of this Court.
p. 5Failure of the nugatory limb of the Rule 5(2)(b) test
The legal and evidentiary burden to prove the nugatory aspects of the intended appeal rests on the applicant.
p. 5Burden of proof on nugatory aspect
It is trite that demonstration of the existence of even one arguable point will suffice in favour of the applicant.
p. 5One arguable point suffices for the first limb
days are gone when this Court was a technical Court whereby failure to attach an order or decree appealed against would render an application or appeal fatal
p. 3Rejection of technical objection for failure to annex order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Amina Shiraz Yakub v David Baburam Jagatram [2019] KECA 862 (KLR)", Case Analysis (2019). Civil Application No. NAI. 294 of 2018 (UR 235/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/862/eng@2019-03-08

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