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Court of AppealDismissedCivil Application No. 51 of 2020· [2020] KECA 96 (KLR)

Priscilla Wambui Mathenge v Mary Wairimu Mathenge & another [2020] KECA 96 (KLR)

Court of Appeal
4 December 2020
ASAsike-MakhandiaMUMusingaMUMurgor
2,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a widow's bid to keep her family land, because she filed no draft appeal and showed no irreparable loss.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Asike-Makhandia, Musinga and Murgor, JJ.A.) on a notice of motion dated 12th June 2020 brought under Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act. The applicant, the second widow of a deceased landowner, sought an injunction restraining interference with her possession of LR Mwerua/Kagioini/881 and a stay of proceedings in Baricho SPMCC No. 25 of 2019 (eviction proceedings filed by the 2nd respondent, the applicant's late husband's brother-in-transferred title) pending an intended appeal from the High Court ruling of L.W. Gitari, J. dated 29th May 2020 in Kerugoya HC Succession Cause No. 123 of 2013, which had dismissed her application for revocation or annulment of a grant under which the estate had been distributed and the suit land transferred to the 1st respondent and onward to the 2nd respondent in 2014. The respondents opposed, arguing there was no evidence of a filed appeal, no arguable appeal, no demonstrated substantial loss, that the orders were sought against a stranger, and that the order complained of was a negative dismissal incapable of being stayed. The Court restated the twin principles under Rule 5(2)(b): an arguable appeal and the nugatory test. It found the application failed on both limbs: the applicant had not annexed a draft memorandum of appeal to demonstrate arguability; the orders were sought against the 2nd respondent, a stranger not joined to the succession cause, who would be condemned unheard; the land had been registered in the 2nd respondent's name since 2014, against whom an injunction would ordinarily not issue; there was no imminent danger of eviction; and the applicant had not shown she could not be compensated in damages. The Court also doubted its jurisdiction to stay the subordinate court's proceedings. The application was dismissed with no order as to costs, the Court noting the dispute is a family one.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

It was not, since no draft memorandum of appeal was annexed and the applicant merely asserted dissatisfaction

Reasoning

The Court reiterated that arguability requires only a ground that is not frivolous, not one that must succeed. However, the applicant did not annex a draft memorandum of appeal, so the Court could not assess whether the intended grounds were arguable. It was insufficient to simply state dissatisfaction with the impugned ruling.

p. 2
02

Whether orders could issue against the 2nd respondent

Holding

No, as he was a stranger to the suit and the registered owner of the suit land since 2014

Reasoning

The orders were sought against the 2nd respondent who had not been joined as a party; granting them would condemn him unheard, contrary to natural justice. Being the registered owner of the land since 2014, an injunction would ordinarily not issue against him.

p. 2
03

Whether the appeal would be rendered nugatory if the orders were not granted

Holding

No, as there was no imminent danger of eviction and any loss was compensable in damages

Reasoning

The nugatory test is assessed on the facts of each case weighing both sides' claims. There was no immediate danger of eviction or sale to third parties; the land was already registered in the 2nd respondent's name; and the applicant did not show she could not be compensated in damages if successful.

p. 3

Legal principles established

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  • To succeed under Rule 5(2)(b), an applicant must satisfy the twin principles that the appeal or intended appeal is arguable and that it would be rendered nugatory if stay is not granted
  • An arguable appeal is not one that must necessarily succeed but one that is deserving of the court's consideration
  • An applicant under Rule 5(2)(b) should annex a draft memorandum of appeal to demonstrate arguability; mere assertion of dissatisfaction is insufficient
  • Substantial loss is the cornerstone of the Rule 5(2)(b) jurisdiction

Court orders

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  1. 1.The application is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of KenyaArticle 65
  • Constitution of KenyaArticle 164(3)

Cases cited (5)

  • Stanley Kangethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Teachers Service Commission v Kenya National Union of Teachers
    Sup. Ct. Appl. No. 16 of 2015
  • Trust Bank Limited & Ano. v Investech Bank Limited & 3 Others
    Civil Application Nai. 258 of 1999 (unreported)
  • Dennis Mogambi Mang'are v Attorney General & 3 Others
    Civil Application No. NAI 265 of 2011 (UR 175/2011)
  • Mukuma v Abuoga
    [1988] KLR 645
On appeal from
High Court at Kerugoya
HC Succession Cause No. 123 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Priscilla Wambui Mathenge v Mary Wairimu Mathenge & another [2020] KECA 96 (KLR)", Case Analysis (2020). Civil Application No. 51 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/96/eng@2020-12-04

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