Mmmm v Jgcm & 2 others
The bottom line
#Kenya's Court of Appeal dismissed a wife's bid to pause a divorce-linked case because her requests didn't flow from the decision she was appealing.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the twin limbs of Rule 5(2)(b)
The application failed both limbs: the grounds were incomprehensible and did not arise from the impugned order, so there was no arguable appeal and no nugatory-ness to address.
The court found the grounds raised by the applicant, who appeared in person, to be inconceivable and incomprehensible. Because the prayers did not flow from the consent order of 3rd July 2018 which the appellant intended to appeal from, the Court lacked jurisdiction to entertain them. It was unnecessary to assess whether the appeal would be rendered nugatory since arguability had not been established.
Scope of relief available in a Rule 5(2)(b) application
Prayers such as injunctions over property not yet proved to be matrimonial property, directives to investigative agencies, and orders unrelated to the impugned order are unsustainable in a Rule 5(2)(b) application.
The 1st respondent argued, and the court effectively accepted, that the reliefs were vague, multifaceted and not founded on any order of the High Court. A Rule 5(2)(b) motion is confined to stay of execution or injunction pending appeal flowing from the order appealed from, not to novel declarations such as adding the applicant as proprietor of the suit property or stopping a contemplated marriage.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted; an arguable appeal need only raise one bona fide point worthy of decision.
- Prayers in a Rule 5(2)(b) application must flow from the order intended to be appealed from; the Court has no jurisdiction to entertain prayers unrelated to the impugned order.
Court orders
#- 1.Dismissal of the notice of motion dated 25th July, 2018 in its entirety
- On appeal from
- High Court
- HCCC No. 37 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (a notice of appeal having been filed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mmmm v Jgcm & 2 others", Case Analysis (2021). Not stated in the judgment (Rule 5(2)(b) motion dated 25th July, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/320/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.