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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Catherine’s intended appeal as reflected in the memorandum of appeal is arguable
- 2.Whether absent orders sought by Catherine, the appeal shall be rendered nugatory in the event it succeeds
Key legal issues
#Arguability of the intended appeal
The appeal was arguable on the single ground whether the learned judge properly exercised his discretion in revoking the limited grant.
The court restated that an arguable appeal is one that is not frivolous or idle but raises a bona fide issue deserving conclusive determination; a single bona fide issue suffices. Of the ten grounds listed, the question whether the judge properly applied the law 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 the estate, would suffer no loss if the orders were denied.
It was common ground that Catherine is not a beneficiary of Carmelina's estate; her participation in the ELC suit was to protect the estate's interest. As a party not interested in the estate she would lose nothing by not participating, and she alleged no beneficial right that denial of the orders would jeopardise. Both limbs must be demonstrated.
Legal principles established
#- Under rule 5(2)(b) the court's discretion is unfettered but must be exercised judicially, on the twin limbs of arguability and nugatory-ness.
- An applicant must satisfy both limbs of the rule 5(2)(b) test; satisfying only one limb does not avail the order sought.
- An arguable appeal need not be one that will necessarily succeed; a single bona fide issue suffices.
Court orders
#- 1.The applicant’s motion fails and is dismissed with no orders to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Stay of the High Court order of 25 October 2021 revoking the limited grant
The nugatory limb was not satisfied; Catherine is not a beneficiary and stands to lose nothing
Stay of proceedings in ELC Case No 1180 of 2014 pending determination of the application and appeal
Both limbs of the rule 5(2)(b) test must be demonstrated; only the arguability limb was met
Costs
The applicant’s motion is dismissed with no orders to costs (each party to bear their own costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under rule 5(2)(b) the discretion of the court is unfettered but must be exercised judicially.
The second limb that an applicant has to demonstrate, is that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory.
In order that the applicant may succeed, he must demonstrate both limbs and demonstrating only one limb would not avail him the order sought if he failed to demonstrate the other limb
Consequently, the applicant’s motion fails and is dismissed with no orders to costs.
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/2022/1414/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.