Ng’ang’a v Mburu & 2 others
The bottom line
#Kenya's Court of Appeal refused to pause a succession ruling because the applicant, not being a beneficiary, would lose nothing even if her appeal later succeeded.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was arguable on the single ground whether the Judge exercised his discretion and applied the law properly in revoking the Limited Grant.
The court restated that an arguable appeal is one not frivolous, raising a bona fide issue deserving determination; a single bona fide issue suffices. Catherine listed ten grounds, and the challenge to the Judge's exercise of discretion in revoking the grant was sufficient to engage the Court's mind on appeal.
Nugatory aspect
The nugatory limb was not satisfied because Catherine, not being a beneficiary of Carmelina's estate, would suffer no loss if the orders were denied.
The impugned ruling revoked the limited grant enabling Catherine to participate in the ELC suit. It was common ground she is not a beneficiary of the estate; she participates only to protect the estate's interest. As a party not interested in the estate, she stands to lose nothing, and no beneficial right was shown to be jeopardized.
Legal principles established
#- Under Rule 5(2)(b), an applicant must satisfy both the arguability and nugatory limbs; satisfying only one limb is insufficient.
- An arguable appeal need not be one that will necessarily succeed; a single bona fide issue suffices.
- The Rule 5(2)(b) discretion is unfettered but must be exercised judicially.
Court orders
#- 1.The applicant’s motion fails and is dismissed with no orders as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Succession Cause No. 1130 of 2018
- 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, "Ng’ang’a v Mburu & 2 others", Case Analysis (2022). Civil Application E408 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1225/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.