Teresia Mwakithi v Jema Karimi [2020] KECA 56 (KLR)
The bottom line
#Kenya's Court of Appeal froze distribution of an estate so an appeal wouldn't be pointless, but ruled only the administrator can collect rent.
What this practically means
#Executive summary
#Key legal issues
#The twin principles for interlocutory relief pending an intended appeal
The applicant must show the intended appeal is arguable and that it will be rendered nugatory if the orders are not granted; both limbs were satisfied
The Court applied HELLEN MAKONE v BRENDA MICHIEKA. It found the draft grounds on interpretation of evidence and acceptance of contradictory evidence sufficient to render the appeal arguable. On the nugatory limb, the estate risked being fully distributed and portions disposed of to third parties before the appeal was determined, leaving nothing for the applicant even if successful.
Management of the estate during the pendency of the appeal
Rent and income from the estate must be collected only by the confirmed administrator and secured for the benefit of the estate; the applicant may remain in residence but must pay reasonable rent
The applicant undisputedly collected over Kshs.100,000/= per month in rent. The Court held this money should be secured for the estate, since the deceased's property vests in the appointed administrator as the trial court held. The applicant's continued residence was protected subject to payment of rent determined by the administrators, a condition the Court found reasonable in light of the respondent's undertaking not to evict her.
Legal principles established
#- In an application for interlocutory relief pending appeal, the Court exercises an unfettered but judicial discretion, and the applicant must satisfy the twin tests: that the intended appeal is arguable and that it would be rendered nugatory if the orders are not granted
- An arguable appeal need not be one that must succeed; it suffices that it is not frivolous and requires the Court's full consideration
Court orders
#- 1.Pending hearing and determination of the applicant's intended appeal, the respondent, her employees, servants and/or agents are restrained from distributing the properties Nyaki/Mulathankari/589, Ntima/Igoki/1227 and Nyaki/Mulathankari/1274
- 2.Pending hearing and determination of the intended appeal, the respondent, her employees, servants and/or agents are restrained from evicting the applicant from the residence she is currently occupying, provided that from 1st January, 2021 she pays reasonable rent determined by the administrators of the deceased's estate
- 3.The intended appeal be filed and served within thirty (30) days from the date of the ruling
- 4.Each party to bear its own costs of the application
- On appeal from
- High Court of Kenya at Meru
- HC. Succession Cause No. 15 of 2007
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over intended appeal from the High Court in a succession cause, with the Court's inherent discretion to grant interlocutory relief pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Teresia Mwakithi v Jema Karimi [2020] KECA 56 (KLR)", Case Analysis (2020). Civil Application No. 33 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/56/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.