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Court of AppealDismissedCivil Application No. 288 of 2019· [2020] KECA 191 (KLR)

Catherine Njeri Ng’ang’a & 2 others v Nancy Wanjiru Njuguna [2020] KECA 191 (KLR)

Court of Appeal
20 November 2020
WKW. KaranjaFSF. SichaleJMJ. Mohammed
555 words in judgment
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The bottom line

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The Court of Appeal refused to pause High Court orders in a succession dispute because the land was safe from transfer and the applicants showed no harm.

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 at Nairobi (Karanja, Sichale and J. Mohammed, JJ.A.) dismissing a Notice of Motion dated 1st July 2020 brought under Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules. The three applicants sought a stay of execution of the ruling and orders of the High Court of Kenya at Nairobi (L. Achode, J) dated 14th May 2019 in High Court Succession Cause No. 2462 of 2009, concerning the estate of Emily Wairimu Chira (deceased) and land parcel Githunguri/Gathangari/2304. The dispute traces to a 0.20-hectare portion which the respondent says she purchased from the deceased and obtained through Githunguri SPMCC No. 90 of 1997, while the applicants allege fraud and contend the estate had already been distributed upon confirmation of grant; the respondent had the confirmed grant nullified. Applying the principles in Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others, the court held that an applicant must demonstrate the two limbs of the conditions precedent for stay. It found the applicants had not shown that the intended appeal would be rendered nugatory absent stay, because the orders of 14th May 2019 had reverted the suit property to the deceased, so it was not in danger of being transferred or otherwise dealt with, and no prejudice would be occasioned absent stay. The motion was disallowed with costs of the motion in the intended appeal. This is an interlocutory ruling, not an appeal on the merits, so the decision below was not disturbed.

Key legal issues

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Whether the applicants met the twin conditions for stay under Rule 5(2)(b)

Holding

The application was disallowed because the nugatory limb was not satisfied: the suit property had reverted to the deceased estate and faced no risk of transfer, and no prejudice would be occasioned to the applicants absent stay.

Reasoning

The court applied the principles in Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others, requiring an applicant to demonstrate both an arguable appeal and that the intended appeal would be rendered nugatory absent stay. The court found the second limb unsatisfied because the orders of 14th May 2019 reverted the suit property to the deceased, so it was not in danger of being transferred or otherwise dealt with, and no prejudice would befall the applicants without a stay. Both limbs must be met; failure on one disposes of the motion.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must successfully demonstrate both limbs of the conditions precedent - an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • Stay will not be granted where the subject property is not in danger of being transferred or otherwise dissipated, so the appeal cannot be rendered nugatory.

Court orders

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  1. 1.The Notice of Motion dated 1st July, 2020 is disallowed
  2. 2.The costs of the motion shall be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 47(1)(2)(3) and (4)

Cases cited (1)

  • Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 2462 of 2009 (In the Matter of the Estate of Emily Wairimu Chira (deceased))
Jurisdiction invoked
Rule 5(2)(b), Rule 42 and Rule 47(1)(2)(3) and (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, "Catherine Njeri Ng’ang’a & 2 others v Nancy Wanjiru Njuguna [2020] KECA 191 (KLR)", Case Analysis (2020). Civil Application No. 288 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/191/eng@2020-11-20

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