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Court of AppealDismissedCivil Application No. 119 of 2020

Florence Wanjiru Ndungi v Persiah Muthoni Masinde (sued as the sole administratix of the Estate of John Gitau Gichuru (Deceased) & another [2021] KECA 804 (KLR)

Court of Appeal
19 March 2021
1,451 words in judgment
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The bottom line

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The Court of Appeal refused to pause a High Court succession ruling because the applicant proved the appeal was arguable but failed to show it would be pointless without a stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Karanja and ole Kantai, JJ.A) on a motion dated 13th May 2020 under Rule 5(2)(b) of the Court's Rules, in which Florence Wanjiru Ndungi sought stay of execution of a ruling of the High Court (Achode, J.) dated 24th September 2019 in Succession Cause No. 20 of 1983. That ruling concerned distribution of the intestate estate of James Samuel Gichuru, directing the administratrix to file a proper list of assets and providing for equal distribution between the estate of the deceased and the estate of John Gitau Gichuru. The applicant, a grandchild of the deceased and daughter of the 2nd respondent, claimed an interest through grants of probate over the estates of two of the deceased's daughters. Applying the settled twin test for stay, the Court found the intended appeal arguable, holding that a single bona fide arguable ground suffices, but held that the nugatory limb was not demonstrated because the applicant adduced no evidence of disposal of estate properties or pursuit by creditors. The Court added that it would hesitate to stay orders directing rendering of accounts, being a legitimate statutory duty of an administratrix under the Law of Succession Act. The Court concluded that an applicant must satisfy both limbs. The application was dismissed with no order as to costs, this being a family matter. The decision binds lower courts on the dual-limb Rule 5(2)(b) threshold.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The arguability limb was satisfied because the dispute over the applicant's legal basis to claim through the estates of Mary and Anne raised issues calling for determination by a court

Reasoning

The applicant claimed a stake in the deceased's estate as appointed executrix of the estates of Mary and Anne, while the 1st respondent maintained the trial court correctly found she had no legal basis for such claims. The Court held this conflict of positions disclosed arguable issues. It applied the settled standard that a single bona fide arguable ground suffices, citing Damji Pragji Mandavia, and expressly found the arguability limb demonstrated.

p. 2
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The nugatory limb failed because the applicant placed no evidence that she had disposed of estate properties to offset liabilities or that creditors had pursued such offsetting

Reasoning

Although the applicant asserted she had disposed of properties under the grants of probate to offset the estates' liabilities and would be condemned to refund third-party buyers, she adduced no evidentiary support for these assertions. Without such proof, the Court could not find the appeal nugatory. Further, staying orders requiring the administratrix to render accounts would obstruct a paramount statutory duty under the Law of Succession Act.

p. 2
03

Whether both limbs of Rule 5(2)(b) must be satisfied

Holding

Both limbs must be satisfied; demonstrating only one will not aid the applicant

Reasoning

Relying on Stanley Kangethe Kinyanjui v Tony Ketter, the Court reiterated the settled principle that an applicant for stay under Rule 5(2)(b) must establish both that the intended appeal is arguable and that it would be rendered nugatory if stay is denied. Satisfaction of only one limb is insufficient, so the application failed notwithstanding arguability.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; demonstrating only one will not suffice
  • On arguability, a single bona fide arguable ground of appeal is sufficient; a multiplicity of grounds need not be established
  • The Court will be hesitant to stay orders directing an administratrix to render accounts, as the duty to account is a legitimate statutory duty under the Law of Succession Act

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.No order as to costs, this being a family matter
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 20 of 1983
Jurisdiction invoked
Rule 5(2)(b) 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, "Florence Wanjiru Ndungi v Persiah Muthoni Masinde (sued as the sole administratix of the Estate of John Gitau Gichuru (Deceased) & another [2021] KECA 804 (KLR)", Case Analysis (2021). Civil Application No. 119 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/804/eng@2021-03-19

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