Sipoi Tipango & 3 others v Rose Mueni Maitha (sued as the legal representative of the estate of Jacob Mutuku Maitha (deceased) & 5 others [2020] KECA 537 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop land dealings because the family already had similar orders from a lower court in a succession case.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The intended appeal was not arguable because the orders sought on appeal had already been granted in the succession cause in the court below; an appeal seeking orders already granted is not arguable.
Applying the Trust Bank and Kang'ethe principles, the court noted that the suit property was subject of a succession cause and the injunctive orders the applicants sought had already been granted by Nyakundi J within that cause. Without making definitive findings, the court was not satisfied that an appeal seeking orders already granted below was arguable. Having failed the arguability limb, the applicants could not invoke the court's discretion.
Whether the applicants satisfied the twin principles under Rule 5(2)(b)
Both limbs must be satisfied; failing the arguability limb, the discretion cannot be exercised in the applicant's favour.
The court reiterated that an applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory absent the orders sought. The applicants having failed on arguability, the nugatory limb did not need to be reached, and the application was dismissed with costs.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs of the twin principles: that the appeal or intended appeal is arguable, and that it will be rendered nugatory unless the orders sought are granted; failure on one limb is fatal.
- An arguable appeal is not one which must necessarily succeed, but one which is not frivolous and deserves full argument; a single bona fide arguable ground suffices.
Court orders
#- 1.The application dated 29th March 2019 is dismissed with costs to the respondents
- On appeal from
- Environment and Land Court
- ELC Case No. 668 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sipoi Tipango & 3 others v Rose Mueni Maitha (sued as the legal representative of the estate of Jacob Mutuku Maitha (deceased) & 5 others [2020] KECA 537 (KLR)", Case Analysis (2020). Civil Application No. NAI. 129 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/537/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.