Bwanamkuu v Said & 5 others (Civil Application E058 of 2021)
The bottom line
#Kenya's Court of Appeal refused to pause a family succession case because the High Court had already frozen the situation, so nothing would be lost by continuing.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended partial appeal
The intended appeal is not frivolous; it raises an arguable point including the interpretation of Section 35 of the Law of Succession Act.
Applying the Kinyanjui v Ketter principles, the court noted that an arguable appeal need not necessarily succeed. Counsel identified that the appeal would require interpretation of Section 35 of the Law of Succession Act, which sufficed to cross the arguability threshold.
Nugatory value of the intended appeal
The appeal will not be rendered nugatory because the High Court ordered the status quo to be maintained pending hearing and determination of the Succession Cause.
The second limb of the Rule 5(2)(b) test requires the applicant to show the appeal would be rendered nugatory if stay is refused. Here the impugned order itself maintains the status quo, preserving the substance of the dispute for hearing, so no nugatory harm was shown.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent stay; the nugatory limb fails where the court below has ordered maintenance of the status quo.
Court orders
#- 1.The application dated 30th March 2021 fails and is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Malindi
- Succession Cause No. 119 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bwanamkuu v Said & 5 others (Civil Application E058 of 2021)", Case Analysis (2022). Civil Application E058 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/443/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.