Jane Alice Wambui Kiragu & 2 others v Brenda Nyambura Kiragu & 6 others
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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.
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.
Whether the appeal would be rendered nugatory absent stay
The appeal would not be rendered nugatory absent stay; the nugatory limb failed and therefore the application failed.
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.
Legal principles established
#- 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
#- 1.The application dated 2nd August 2021 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.