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Court of AppealDismissedRule 5(2)(b) application dated 18th August 2022 (arising from Nairobi High Court Succession Cause No. 2501 of 2003; In the Matter of the Estate of Andrew Mungai Muthemba)· [2023] KECA 522 (KLR)

Muthemba v Muthemba & 2 others (Civil Application E333 of 2022) [2023] KECA 522 (KLR)

Court of Appeal
12 May 2023
DMD. K. MusingaALAli-AroniJMJ. Mativo
3,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal dismissed a request to pause orders revoking an estate administrator's appointment because no proper appeal notice was filed and there was nothing to stay.

What this practically means

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Executive summary

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This was a single-judge-ruled but full-bench rule 5(2)(b) application by Jane Njeri Mungai seeking stay of execution of a High Court ruling dated 20th December 2021 (as she described it) revoking her appointment and that of the 1st respondent as co-administrators of the estate of Andrew Mungai Muthemba, and of the ruling of 27th July 2022 dismissing her application for review, pending an intended appeal. The respondents opposed, arguing no notice of appeal had been filed against the revocation ruling, that the ruling dismissing review was a negative order incapable of being stayed, that distribution of the estate under an earlier Court of Appeal judgment (Civil Appeal No. 448 of 2018) was complete, and that the intended appeal was neither arguable nor nugatory. The Court held that a notice of appeal is the foundation of every appeal and a jurisdictional prerequisite under rule 77(1) of the Court of Appeal Rules, 2022; the applicant had filed a notice of appeal only against the ruling of 27th July 2022, not against the revocation ruling, so the application insofar as it sought to stay that ruling was a non-starter. Further, since the ruling of 27th July 2022 merely dismissed the review application, there was no positive order capable of being stayed. Applying Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the applicant had not demonstrated an arguable appeal, and therefore declined to consider the nugatory limb. The application was dismissed with costs to the 2nd and 3rd respondents. The decision of the High Court was not itself under review and was not disturbed.

Key legal issues

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01

Jurisdiction where no notice of appeal has been filed against the order sought to be stayed

Holding

The Court had no basis to entertain a stay of the ruling of 20th December 2021 because the only notice of appeal filed was against the ruling of 27th July 2022 dismissing the review applications; the application in that respect fell for dismissal.

Reasoning

Rule 77(1) of the Court of Appeal Rules, 2022 requires a person desiring to appeal to lodge a notice of appeal in writing in two copies. Citing Salat v IEBC and Bookpoint v Guardian Bank, the Court held a notice of appeal is a jurisdictional prerequisite; a valid initiating process is necessary to confer jurisdiction, and an invalid one is a nullity to be struck out without much ado.

p. 6
02

Whether there is a positive order capable of being stayed

Holding

The ruling of 27th July 2022 merely dismissed the applicant's application for review; being a negative order, it is incapable of being stayed and on this ground alone the application fails.

Reasoning

The respondents argued, citing Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Mombasa Seaport Duty Free v Kenya Ports Authority, that a negative order cannot be stayed. The Court agreed: the ruling under attack dismissed the review application, so there was nothing to stay, and the applicant's application failed on this ground.

p. 6
03

Whether the intended appeal is arguable

Holding

The applicant failed to demonstrate even a single bona fide arguable ground; the estate distribution had been completed per an earlier Court of Appeal judgment and the grievance lay only in the revocation of her appointment as administrator.

Reasoning

Applying Stanley Kangethe Kinyanjui v Tony Ketter, the Court evaluated the grounds without making definitive findings. It noted the distribution of the estate was complete and unchallenged, the court's statutory discretion under section 66 of the Law of Succession Act on administrators, and the absence of any draft memorandum of appeal annexed; hence no arguable appeal was demonstrated.

p. 7
04

Whether the appeal would be rendered nugatory absent a stay

Holding

Having found no arguable appeal, the Court found it unnecessary to address the nugatory aspect.

Reasoning

Both limbs of the rule 5(2)(b) test must be satisfied. Having failed on the arguability limb, the Court declined to consider the nugatory limb, observing it would serve no utilitarian value.

p. 7

Legal principles established

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  • A notice of appeal is the foundation of an appeal and a jurisdictional prerequisite; where a court finds the originating process incompetent, it must be struck out without much ado.
  • A negative order, such as an order dismissing an application, is incapable of being stayed.
  • A rule 5(2)(b) applicant must establish both an arguable appeal and that the appeal will be rendered nugatory absent a stay; failure on the first limb makes it unnecessary to address the second.

Court orders

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  1. 1.Dismissal of the application dated 18th August 2022
  2. 2.Costs of the application to the 2nd and 3rd respondents

Authorities

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Legislation

  • Law of Succession Actsection 76(d)(ii) and (iii)
  • Law of Succession Actsection 66
  • Law of Succession Actsection 83(h)
  • Law of Succession Actsection 83(g)
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Court of Appeal Rules, 2022rule 5(2)(b)
  • Court of Appeal Rules, 2022rule 77(1)

Cases cited (13)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Reliance Bank Limited v Norlake Investments Ltd
    (2002) 1 EA
  • Nguruman Limited v Shompole Group Ranch & another
    (2014) eKLR
  • Nairobi City Council v Resley
    (2002) 2 EA 493
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    (2020) eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    (206) eKLR
  • Mombasa Seaport Duty Free Limited v Kenya Ports Authority
    CA No NAI 242 of 2006
  • Kenya Tea Growers Association & Another v Kenya Planters & Agricultural Workers Union
    Civil Application No. NAI 72 of 2001
  • Kaushik Panchamatia & 3 others v Prime Bank Limited & Another
    (2020) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR
  • Silverbrand vs County of Los Angeles
    (2009) 46 Cal. 4th 106, 113
  • Bookpoint Limited v Guardian Bank Limited & Another
    (2021) eKLR
  • Civil Appeal No. 448 of 2018 (distribution of the estate of Andrew Mungai Muthemba)
On appeal from
High Court of Kenya, Family Division, Nairobi
Succession Cause No. 2501 of 2003; In the Matter of the Estate of Andrew Mungai Muthemba
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 (this was an application for stay of execution pending appeal, not a full appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muthemba v Muthemba & 2 others (Civil Application E333 of 2022) [2023] KECA 522 (KLR)", Case Analysis (2023). Rule 5(2)(b) application dated 18th August 2022 (arising from Nairobi High Court Succession Cause No. 2501 of 2003; In the Matter of the Estate of Andrew Mungai Muthemba). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/522/eng@2023-05-12

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