Abdikadir Gubo Darche & 2 others v Khadija Gubo Darche & 2 others

The court restated the settled twin test for a Rule 5(2)(b) application, citing its own decision in Stanley Kangethe Kinyanjui v Tony Ketter. An arguable appeal is one raising at least one bona fide issue worthy of consideration, not necessarily one that will succeed. The second limb requires showing that, without interim intervention, damage of a great or irreversible character would destroy the substratum of the appeal.

The applicants argued the judge erred in remitting the matter to the Kadhi's court despite that court having heard the parties and returned a verdict, contrary to section 6(iii) of the Kadhis' Courts Act, which bars reversal on account of the application of Muslim law rules of evidence absent a failure of justice. The court could not discern any error in the referral and found the contention doubtful as arguable.

The applicants contended the respondents were in the process of executing the judgment. However, the High Court orders required both applicants and respondents, as children of the deceased, and any other beneficiary left out, to share the estate in accordance with Islamic law following valuation and distribution directed by the Kadhi. Since execution would not destroy the substratum of the appeal or cause irreversible prejudice, the second limb failed.