Rosemary B. Koinange (Suing As The Legal Representative of the Estate of the Late Dr. Wilfred Koinange and also in her Own Personal Capacity) & 6 others v Isabella Wanjiku Karanja & 1 other
The bottom line
#Kenya's Court of Appeal refused to pause a long-running succession case, confirming succession courts can decide disputes over a deceased person's company shares.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal on the jurisdiction of the Succession Court over disputed company shares
The Court held the intended appeal was doubtful on arguability because the jurisdictional issue had already been authoritatively addressed in Civil Appeal No. 126 of 2016, which held that the Succession Court can determine whether the deceased gifted his shares.
The Court perused its own earlier judgment in Civil Appeal No. 126 of 2016 and found that paragraph 54 of that judgment had emphatically settled that the Succession Court has jurisdiction to decide whether the deceased gifted his shares to a beneficiary. Since the applicants sought to re-litigate that settled issue, the Court entertained grave doubts as to whether the intended appeal was arguable under rule 5(2)(b).
Whether the intended appeal would be rendered nugatory if the stay of proceedings was refused
The Court held the appeal would not be rendered nugatory; the succession cause, pending since 2006, should be finalised expeditiously, and preservation orders can protect the contested shares.
Even assuming arguability, the Court was not satisfied the appeal would be rendered nugatory. Delaying finalisation of a succession cause pending since 2006 to await an interlocutory appeal was not in the interest of justice. Dissatisfied parties may appeal against the substantive decision, and because the contested shares have a determinate value, appropriate preservation orders can be made pending final determination.
Legal principles established
#- An arguable appeal need not be one that must succeed; it is enough that it raises at least one ground that ought to be fully argued.
- The grant of a stay of proceedings is a discretionary remedy to be exercised judiciously, weighing the consequences of grant or refusal, and imposed only where the proceedings ought not, beyond reasonable doubt, be allowed to continue.
- On the nugatory aspect, where contested shares have a determinate value, appropriate preservation orders can be made, so an interlocutory appeal on jurisdiction will not be rendered nugatory by allowing the trial court to proceed.
Court orders
#- 1.Dismissal of the application for stay of proceedings with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Succ. Cause No. 998 of 2006
- Jurisdiction invoked
- Rules 5(2)(b), 42 and 43 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosemary B. Koinange (Suing As The Legal Representative of the Estate of the Late Dr. Wilfred Koinange and also in her Own Personal Capacity) & 6 others v Isabella Wanjiku Karanja & 1 other", Case Analysis (2021). Civil Application No. 331 of 2019 (UR.292/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/717/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.