Fredrick Kinoti M’mwongo & 1 other v Catherine M’mwongo & 2 others
The bottom line
#The Court of Appeal refused to stop a family land transfer because the applicants never explained why their appeal was worth hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the twin principles for relief under rule 5(2)(b) of the Court of Appeal Rules
The application was dismissed because the applicants neither addressed the arguability of the intended appeal nor the nugatory aspect, merely repeating the material they had raised in their failed review application before the High Court
The court restated the well-known principles governing rule 5(2)(b) applications: arguability of the intended appeal and the risk that the appeal would be rendered nugatory absent stay. The applicants' grounds, affidavit and submissions merely reiterated their High Court review application and brought nothing new, leaving the court without any basis to assess either principle. The application was therefore bereft of merit.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must demonstrate that the intended appeal is arguable and that, absent stay, the appeal would be rendered nugatory
- Applications for stay and injunction under the Court of Appeal Rules attract considerations different from those applicable to applications in the High Court, and a party must address those appellate-specific principles
Court orders
#- 1.The application for stay of execution and injunction is dismissed
- 2.No order as to costs, this being a family dispute
- On appeal from
- High Court
- Succession Cause No. 245 of 2007
- 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, "Fredrick Kinoti M’mwongo & 1 other v Catherine M’mwongo & 2 others", Case Analysis (2021). Civil Application No. 41 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/722/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.