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Court of AppealPartially AllowedKisumu Civil Application No. 117 of 2019· [2020] KECA 141 (KLR)

George Orondo Owuoche & another v Jemima Juma Oketch [2020] KECA 141 (KLR)

Court of Appeal
4 December 2020
1,019 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 froze a Kisumu succession decree because unchallenged evidence showed family land with dozens of homes was being sold off.

What this practically means

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Executive summary

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This is a single-judgment-of-the-court ruling of the Court of Appeal (Kiage, Sichale and J. Mohammed, JJ.A) on a Notice of Motion dated 24th September 2019 invoking Rule 5(2)(b) and Rule 4 of the Court of Appeal Rules. The applicants sought interim and pending-appeal injunctive orders restraining the respondent from dealing with land parcel East Gem/Ulamba/392, extension of time to appeal, and deeming of their Notice of Appeal, in respect of the judgment of Hon. Lady Justice E.N. Maina delivered on 3rd July 2018 in Kisumu Succession Cause No. 682 of 2013. That judgment had found no merit in the applicants' protest against the mode of distribution of the estate of Samuel Opwapo, declared the respondent the sole beneficiary of the suit property and the deceased's share in East Gem/Ulamba/160, and ordered a certificate of confirmation of grant. Applying the settled twin principles for stay under Rule 5(2)(b) - arguability and nugatory value - the court found the applicants' claims of ancestral ownership and illegal registration arguable, and held that their uncontroverted averment that the respondent had begun disposing of the suit property, on which dozens of family homes stand, meant the intended appeal would be rendered nugatory without relief. The court granted the application only in terms of prayer 3, staying the decree in the succession cause pending the intended appeal, with costs of the application in the intended appeal. The extension-of-time and deeming prayers were not addressed in the operative orders.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicants' contention that the suit property is ancestral land bequeathed to them by their grandfather/father-in-law and illegally registered in the deceased's name raised arguable issues.

Reasoning

The court noted the applicants intend to challenge the finding that the respondent is the sole beneficiary of the suit property and the consequent certificate of confirmation of grant. Their claim of ancestral ownership by Musa Otolo Orondo and illegal registration by the deceased were, in the court's view, issues worthy of consideration on appeal, satisfying the first limb of the twin principles.

p. 2
02

Nugatory value of the intended appeal

Holding

The applicants' uncontroverted averment that the respondent had started disposing of the suit property, on which dozens of family homes stand, meant the appeal would be rendered nugatory without stay.

Reasoning

The court observed that the assertion that the respondent intends to sell or has started selling the suit property was not denied on oath and was therefore uncontroverted. The possibility of destruction of dozens of family homes and eviction of family members was not a matter to be taken lightly; injunctive orders were warranted to avoid irreparable damage and preserve the integrity of the appellate process.

p. 2

Legal principles established

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  • To obtain stay of execution under Rule 5(2)(b), an applicant must satisfy the twin principles that the intended appeal is arguable and that, if successful, it will be rendered nugatory unless stay is granted.
  • The nugatory test asks whether what is sought to be stayed is reversible, or, if irreversible, whether damages will reasonably compensate the aggrieved party.

Court orders

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  1. 1.Stay of the decree in Succession Cause No. 682 of 2013 pending the hearing and final determination of the applicants' intended appeal (granted in terms of prayer 3)
  2. 2.Costs of the application to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 4

Cases cited (2)

  • Jaribu Holdings Ltd v Kenya Commercial Bank Ltd
    CA No. 314 of 2007
  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    [2103] eKLR
On appeal from
High Court of Kenya at Kisumu
Succession Cause No. 682 of 2013
Jurisdiction invoked
Rule 5(2)(b) and Rule 4 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, "George Orondo Owuoche & another v Jemima Juma Oketch [2020] KECA 141 (KLR)", Case Analysis (2020). Kisumu Civil Application No. 117 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/141/eng@2020-12-04

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