Purity Kamunda Cilindi v Asenath Gatakaa Ntwiga [2020] KECA 93 (KLR)
The bottom line
#The Court of Appeal refused to protect a widow's claim to inherited land because that land had already been subdivided and distributed, leaving nothing for the court to preserve.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal is arguable
The appeal was found arguable
The court considered whether the suit property belonging to the applicant's father-in-law ought to have been given exclusively to the applicant by virtue of her position as wife to one of his sons and the alleged exclusive gift of another parcel to a different son. Having regard to the circumstances, the appeal met the arguability threshold, though this alone was insufficient.
Whether the appeal would be rendered nugatory absent the orders sought
The nugatory limb was not satisfied because the suit property had been subdivided and distributed to beneficiaries, including the applicant, and had ceased to exist
The respondent disclosed that pursuant to the trial court's decision, the suit property was subdivided into four parcels (LR Mwimbi/Chogoria/6928, 6929, 6930 and 6931) and distributed among the beneficiaries including the applicant. The orders sought were therefore overtaken by events and incapable of being issued, so the application failed.
Legal principles established
#- An application under rule 5(2)(b) requires the applicant to demonstrate that the appeal is arguable and that, if successful, it would be rendered nugatory absent a stay or injunction
- In determining rule 5(2)(b) applications the Court exercises a distinct jurisdiction which is not an appeal from the trial judge's discretion
- Orders under rule 5(2)(b) cannot issue in respect of property that has ceased to exist or has been altered so that the orders are overtaken by events
Court orders
#- 1.The motion dated 18th June 2020 is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Chuka
- Chuka HC. Succ No. 54 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Purity Kamunda Cilindi v Asenath Gatakaa Ntwiga [2020] KECA 93 (KLR)", Case Analysis (2020). Civil Application No. 53 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/93/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.