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Court of AppealDismissedCivil Application No. 64 of 2020· [2020] KECA 117 (KLR)

Violet Ciambaka Sabari v Phares Gitari Njeru & 2 others [2020] KECA 117 (KLR)

Court of Appeal
4 December 2020
William OukoW. OukoWKW. KaranjaMartha Karambu KoomeM.K. Koome
558 words in judgment
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The bottom line

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The Court of Appeal refused a widow's request to pause a succession ruling because she filed her appeal notice late and without permission.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal (Ouko, P, Karanja and Koome, JJ.A) dismissing a motion for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules, brought pending an intended appeal against a ruling of Limo, J of the High Court at Chuka delivered on 27th May 2020 in Misc. Succession Cause No. 21 of 2018. In the High Court, the Judge had allowed summons for confirmation of a grant, finding that the applicant was not a dependant of the deceased because her late husband, through whom she claimed dependency, was neither a child nor a dependant of the deceased; the Judge also dismissed her prayers for leave to appeal and stay of the orders of 13th February 2020. Before the Court of Appeal, the applicant argued that her intended appeal - turning on whether her husband was the deceased's son - was arguable. The respondents' sole objection was that the notice of appeal was filed out of time, being lodged on 2nd June 2020, well beyond the 14 days prescribed by Rule 75(2). The court agreed: without leave to challenge the ruling and with a notice of appeal filed out of time and without leave, the arguability of the appeal was highly doubtful. It held that leave and a valid notice of appeal are jurisdictional prerequisites to a Rule 5(2)(b) application. Citing Nguruman Limited v Shompole Group Ranch and the Konchellah case, the court confirmed that both limbs of the Rule 5(2)(b) test must be satisfied, and having failed the first limb, the applicant could not succeed. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the intended appeal was arguable where the notice of appeal was filed out of time and without leave

Holding

The application failed because the applicant had neither obtained leave to challenge the decision of 27th May 2020 nor filed the notice of appeal within the 14 days prescribed by Rule 75(2), making the arguability of the intended appeal highly doubtful.

Reasoning

The court applied the well-known Rule 5(2)(b) principles as stated in Nguruman Limited v Shompole Group Ranch. It reasoned that leave and a timely notice of appeal are jurisdictional prerequisites: without them the application cannot stand. Having failed on the first limb, the court was not obliged to consider the second limb. The decision of Limo, J dated 27 May 2020 was the decision to be challenged, and the notice filed on 2 June 2020 was out of time.

p. 1
02

Whether failure on one limb of the Rule 5(2)(b) test suffices for stay

Holding

Both limbs of the Rule 5(2)(b) test must be satisfied; proof of one only will not be enough. Once the first limb fails, the court need not consider the second limb.

Reasoning

Relying on William Lerikan Konchellah & another v Julius Tabarai Ole Maito Tampushi, the court reiterated that an applicant must demonstrate both arguability of the intended appeal and the degree of injury to be suffered if stay is not granted. Having failed to satisfy the first limb, the applicant's application necessarily fell away and the second limb fell to be determined.

p. 2

Legal principles established

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  • Under Rule 5(2)(b), an applicant must satisfy both limbs of the test - arguability and the degree of injury - and proof of one only will not suffice
  • Leave to appeal and a notice of appeal filed within time are jurisdictional prerequisites to an application under Rule 5(2)(b)

Court orders

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  1. 1.Dismissal of the application for stay of execution
  2. 2.No orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75(2)

Cases cited (2)

  • Nguruman Limited vs. Shompole Group Ranch & Another
    [2014] eKLR
  • William Lerikan Konchellah & another v Julius Tabarai Ole Maito Tampushi
    [2014] eKLR
On appeal from
High Court of Kenya at Chuka
Misc. Succession Cause No. 21 of 2018
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, "Violet Ciambaka Sabari v Phares Gitari Njeru & 2 others [2020] KECA 117 (KLR)", Case Analysis (2020). Civil Application No. 64 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/117/eng@2020-12-04

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