Mbili & another v Suleiman El Busaidy & another
The bottom line
#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
#Executive summary
#Key legal issues
#Test for grant of stay pending appeal under rule 5(2)(b)
The applicant must demonstrate both that the intended appeal is arguable and that, if successful, it will be rendered nugatory without stay.
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.
Preservation of the substratum of an appeal
Where the subject matter is land forming part of a deceased's estate, stay may be granted to preserve the substratum of the appeal.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the outcome of the intended 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.