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Court of AppealAllowedCivil Application E54 of 2021· [2022] KECA 750 (KLR)

Mbili & another v Suleiman El Busaidy & another

Court of Appeal
27 May 2022
1,302 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 paused execution of a High Court succession judgment because the disputed land could be sold off before the appeal was heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Malindi (S. Gatembu Kairu, Nyamweya and J. Lesiit, JJA) on a notice of motion dated 18th August 2021 by Said Khamisi Mbili and Esha Ahamad Hamisi, the widow and son of a deceased person, seeking stay of execution of the High Court judgment in Succession Cause No. 141 of 2016 delivered by Nyakundi, J on 14th April 2021. The High Court had annulled the applicants' confirmed grant of letters of administration on grounds of non-disclosure and concealment of material facts, recalled the grant, and declared the suit property to be Wakf property that cannot be inherited. The applicants lodged a notice of appeal and drafted a memorandum of appeal with 20 grounds, contending inter alia that the High Court granted final orders in an interlocutory application that had only sought interim orders, and that the second respondent, formerly their advocate, lacked capacity to seek annulment of a confirmed grant. Applying the settled two-limb test for stay under rule 5(2)(b) from Stanley Kangethe Kinyanjui v Tony Ketter, the court found the appeal arguable and not frivolous, and held that without stay the suit land, being the substratum of the estate distribution dispute, might be alienated beyond the estate's reach, rendering the appeal nugatory. Relying on Butt v Rent Restriction Tribunal, it held the discretionary power should not prevent an appeal. The application was allowed; stay of execution was granted pending the intended appeal, with costs of the application to abide its outcome.

Key legal issues

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01

Test for grant of stay pending appeal under rule 5(2)(b)

Holding

The applicant must demonstrate both that the intended appeal is arguable and that, if successful, it will be rendered nugatory without stay.

Reasoning

The court applied the established two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter. It found the appeal arguable because the High Court allegedly granted final orders in an interlocutory application, and found the nugatory limb satisfied because the suit land, the estate's substratum, might be alienated before the appeal was heard.

p. 2
02

Preservation of the substratum of an appeal

Holding

Where the subject matter is land forming part of a deceased's estate, stay may be granted to preserve the substratum of the appeal.

Reasoning

Relying on Butt v Rent Restriction Tribunal, the court held that although the power to grant stay is discretionary, it should not be used to prevent an appeal. Since the property might be out of the estate's reach if alienated pending appeal, preservation of the substratum justified stay.

p. 3

Legal principles established

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  • An arguable appeal need not be one that must succeed, only one that is not frivolous and ought to be argued fully.
  • The discretionary power to grant or decline stay of execution should not be exercised so as to prevent an appeal.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the High Court delivered on 14th April 2021 pending the hearing and determination of the applicants' intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 47
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Constitution of KenyaArticle 159(2)(d)
  • Law of Succession Actsection 50

Cases cited (3)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others
    [2013] eKLR

    Two-limb test for stay pending appeal: arguability and nugatory aspects.

  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008

    Definition of an arguable appeal as one not frivolous.

  • Butt –v- Rent Restriction Tribunal
    (1979) eKLR

    Discretionary stay power should not be used to prevent an appeal.

On appeal from
High Court
Succession Cause No. 141 of 2016
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbili & another v Suleiman El Busaidy & another", Case Analysis (2022). Civil Application E54 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/750/eng@2022-05-27

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