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Court of AppealAllowedCivil Application No. 78 of 2020· [2020] KECA 165 (KLR)

Francis Wesonga Odipo & another v Ali Omondi Malichi & another [2020] KECA 165 (KLR)

Court of Appeal
20 November 2020
ASAsike-MakhandiaSKS. Gatembu KairuSKS. ole Kantai
724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal halted execution of a Kakamega succession ruling, preserving contested family land until an appeal over inheritance rights is heard.

What this practically means

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Executive summary

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The applicants, dissatisfied with a judgment of the High Court of Kenya at Kakamega (Njagi, J.) in Kakamega High Court Succession Cause No. 595 of 2009, in which the Judge distributed land parcel South Wanga/Lureko/181 from the estate of the late Odipo Wangoma to seven persons including the two respondents, filed a Notice of Appeal and brought a Motion under rules 5(2)(b), 41 and 47 of the Court of Appeal Rules seeking stay of execution of that judgment pending the hearing and determination of an intended appeal. The applicants contended that the 1st respondent was not a child of the deceased and not entitled to inherit, that the Judge erred in finding a trust in favour of the 1st respondent's father, and that execution would render the intended appeal nugatory. No replying affidavit was filed. Applying the established rule 5(2)(b) test, citing Stanley Kangethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR, the Court found that whether the 1st respondent, not being a child of the deceased, was entitled to inherit part of the suit land was an arguable point, noting that an arguable point need not succeed. The Court further found that imminent execution and transfer of the suit land could place it beyond the applicants' reach, rendering the appeal nugatory. The Motion was allowed with costs to abide the intended appeal. The decision does not disturb the High Court judgment on the merits; it preserves the status quo pending appeal and binds subordinate courts on the two-limb rule 5(2)(b) test.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found an arguable point in the question whether the 1st respondent, not being a child of the deceased, was entitled to inherit part of the suit land.

Reasoning

The draft memorandum of appeal raised errors in the Judge awarding 12 acres to the 1st respondent who was not a child of the deceased, in finding a trust in favour of the 1st respondent's father, and in failing to follow certain provisions of law. The Court held that whether a non-child of the deceased was entitled to inherit was arguable, an arguable point not being one that must succeed.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

The Court was satisfied that if the judgment were executed and the suit land transferred per the distribution ordered, the land may be put beyond the reach of the applicants, rendering the appeal nugatory.

Reasoning

The applicants urged that the judgment was about to be executed and the suit land transferred in accordance with the distribution ordered by the Judge. The Court accepted that execution would put the land possibly beyond the applicants' reach, satisfying the second limb of the rule 5(2)(b) test, and allowed the motion.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must first demonstrate that the appeal or intended appeal is arguable (not frivolous) and, in addition, that the appeal would be rendered nugatory absent stay.

Court orders

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  1. 1.Stay of execution of the judgment of the High Court at Kakamega dated 17th July 2020 in Kakamega High Court Succession Cause No. 595 of 2009 pending the intended appeal
  2. 2.Costs to abide the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 47

Cases cited (1)

  • Stanley Kangethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
On appeal from
High Court of Kenya at Kakamega
HC. Succession Cause No. 595 of 2009
Jurisdiction invoked
Rules 5(2)(b), 41 and 47 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, "Francis Wesonga Odipo & another v Ali Omondi Malichi & another [2020] KECA 165 (KLR)", Case Analysis (2020). Civil Application No. 78 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/165/eng@2020-11-20

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