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Court of AppealPartially AllowedCivil Application No. 39 of 2020· [2021] KECA 1056 (KLR)

Paul Korir Sawe & 1 other v Salina C. Sawe

Court of Appeal
29 January 2021
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal froze two inherited land parcels, barring subdivision or sale while a will dispute appeal is decided.

What this practically means

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Executive summary

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The applicants, members of the first house of the estate of Gedion Sawe Kipkessio, sought stay of execution under Rule 5(2)(b) of the Court of Appeal Rules pending an appeal against the judgment of H. A. Omondi J. of the High Court at Eldoret delivered on 14 August 2019 in Eld. H.C. Succession Cause No. 369 of 2004. The High Court had rejected the applicants' probate claim based on a written will and distributed the estate under Section 40 of the Law of Succession Act. The applicants contended that parcels No. 7739/8 Saroiyot and Nandi/Cheptil/138 were being subdivided and might be disposed of, rendering the appeal nugatory. The respondent opposed, arguing there was no valid appeal because the record of appeal was served late, and that the subdivision followed a mutual agreement between the two houses. The court declined to deal with the late-service issue, holding that the extension-of-time application was not before it and that the motion was anchored on a duly filed Notice of Appeal. Applying the settled two-limb Rule 5(2)(b) test, the court found the grounds on the validity of the will and the alleged award of land to non-beneficiaries arguable, and held that subdivision and transfer of the parcels would render the appeal nugatory, noting that both parties were already in occupation so a delay would cause no hardship. The court granted an order maintaining the status quo over the two parcels until the appeal is heard and determined, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The grounds touching on the existence of a valid will and the alleged award of land to non-beneficiaries were not frivolous

Reasoning

The court took a cursory look at the issues of whether the deceased left a valid will and whether non-beneficiaries were awarded his land, and found these not frivolous. It reiterated that an arguable appeal is one deserving of the court's consideration, not one that must necessarily succeed, leaving merits to the full bench.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

Subdivision and transfer of the disputed parcels before the appeal would render it nugatory; a status quo order was warranted

Reasoning

The court found a genuine dispute over the consent relied on for the subdivision of Nandi/Cheptil/138 and an unresolved dispute over Saroiyot, and noted both houses were in occupation. It concluded subdivisions and transfers would render the appeal nugatory and that delay would cause no undue hardship.

p. 2
03

Scope of the motion before the court

Holding

The court declined to entertain issues of late service of the record of appeal, which belonged to a separate application

Reasoning

The respondent argued there was no valid appeal due to late service of the record of appeal. The court held that the motion was founded on a duly filed Notice of Appeal and that the extension-of-time application was not before it.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted
  • An arguable appeal need not be one that will succeed; it suffices that it raises a serious question of law deserving consideration

Court orders

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  1. 1.The parties are ordered to maintain the status quo currently obtaining in respect of No. 7739/8 SAROIYOT and NANDI/CHEPTIL/138 until the appeal is heard and determined or further orders are made thereto
  2. 2.Costs of this application to abide the outcome of the appeal
On appeal from
High Court at Eldoret
Eld. H.C. Succ. Cause No 369 of 2004
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, "Paul Korir Sawe & 1 other v Salina C. Sawe", Case Analysis (2021). Civil Application No. 39 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1056/eng@2021-01-29

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