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Court of AppealDismissedNotice of Motion dated 2nd August 2021 (application in intended appeal from Nairobi HCSC No. 336 of 2020)· [2022] KECA 92 (KLR)

Jane Alice Wambui Kiragu & 2 others v Brenda Nyambura Kiragu & 6 others

Court of Appeal of Kenya
4 February 2022
2,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause succession proceedings over the Nginyo Kariuki estate because the applicants showed an arguable appeal but no irreversible harm.

What this practically means

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Executive summary

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The applicants, three of the executors of the estate of Lawrence Nginyo Kariuki, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules and Section 3 of the Appellate Jurisdiction Act seeking a stay of further proceedings in Nairobi HCSC No. 336 of 2020 and a stay of the orders of S. Mutuku, J. dated 27th July 2021. Those orders restrained the applicants from intermeddling with the deceased's estate, directed them to account for funds received from the estate since the deceased's demise, and directed a forensic audit of the estate. The applicants contended that Section 80(1) of the Law of Succession Act entitled executors to act before the grant issued, that the judge lacked jurisdiction to order a forensic audit before objections to the Will were heard, and that the audit would be irreversible. The respondents opposed, relying on the duty to account under Section 83(h) and the applicants' prior concession to render accounts. Applying the settled two-limb test from Trust Bank v Investech Bank and Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the intended appeal arguable on the question of the High Court's jurisdiction, but held that the appeal would not be rendered nugatory absent stay because the statutory power to order an account meant no irreversible prejudice would flow. As both limbs must be satisfied, the application was dismissed with each party bearing their own costs, the dispute being a family matter.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was arguable, there being a bona fide arguable ground whether the High Court judge had jurisdiction to make the impugned orders before the objections to the Will were heard.

Reasoning

The Court applied the settled test that only a single bona fide arguable ground is required. It found it arguable whether the learned Judge had jurisdiction to make the impugned orders before objections to the Will were heard, but declined to make definitive findings to avoid embarrassing the bench seized of the main appeal.

p. 5
02

Whether the appeal would be rendered nugatory absent stay

Holding

The appeal would not be rendered nugatory absent stay; the nugatory limb failed and therefore the application failed.

Reasoning

Applying the test that nugatory means worthless, futile, invalid or trifling, and considering reversibility and compensation, the Court held that Section 83(h) of the Law of Succession Act allows the court to order an account of the estate, so the appeal would not be rendered nugatory. The High Court should be allowed to expeditiously determine the suit, and the applicants had failed to satisfy both limbs.

p. 6

Legal principles established

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  • To succeed on an application under Rule 5(2)(b), an applicant must satisfy both the arguability limb and the nugatory-aspect limb; satisfying only one is insufficient.
  • An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.

Court orders

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  1. 1.The application dated 2nd August 2021 is dismissed
  2. 2.Each party to bear their own costs, this being a family matter
On appeal from
High Court of Kenya
Nairobi HCSC No. 336 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Section 3 of the Appellate Jurisdiction Act

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, "Jane Alice Wambui Kiragu & 2 others v Brenda Nyambura Kiragu & 6 others", Case Analysis (2022). Notice of Motion dated 2nd August 2021 (application in intended appeal from Nairobi HCSC No. 336 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/92/eng@2022-02-04

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