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Court of AppealAllowedCivil Application (rule 5(2)(b)) arising from Succession Appeal No 4 of 2020· [2023] KECA 662 (KLR)

Opondo & another v Sanya & another (Civil Application E029 of 2023) [2023] KECA 662 (KLR)

Court of Appeal
9 June 2023
DMD. K. MusingaHOH. A. OmondiKLDr. K. I. Laibuta
2,005 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped an eviction and property sale pending appeal, ruling that irreversible harm from eviction justified freezing the succession outcome.

What this practically means

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Executive summary

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The applicants, the deceased's second wife and his sister, moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a High Court judgment delivered on July 14, 2022 in Succession Appeal No 4 of 2020. The underlying succession dispute concerned LR Mavoko Municipality 12715/3208, the sole asset of the estate of Modkaya Ouma Oguta. The trial magistrate's court had ordered the property sold and proceeds shared 55:45 between the two wives. On appeal, the High Court held that the 1st respondent and the deceased were joint owners, so on his death she automatically became sole owner; the property therefore fell outside the estate and was unavailable for distribution. She was subsequently registered as owner and issued a notice to vacate to the 1st applicant. The applicants contended they had an arguable appeal - the title was in the deceased's sole name and the deceased was in a polygamous union - and that the property risked alienation, rendering the appeal nugatory. The respondents countered that the application was premature, eviction proceedings were pending, and the applicants could be compensated in damages. Applying the settled twin principles under rule 5(2)(b), the Court found the memorandum of appeal raised arguable issues, notably whether the 1st respondent was a joint owner and who the legal heirs are. On the nugatory limb, the Court weighed the hardship on both sides, holding that eviction and possible alienation would not be reversible or compensable by damages, particularly given the presence of school-going children in occupation. The Court allowed the application and granted stay pending appeal, with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the memorandum of appeal raised several arguable issues, including whether the 1st respondent was a joint owner of the suit property and who the legal heirs of the deceased are.

Reasoning

Applying the settled rule 5(2)(b) principles, the Court needed only a single bona fide arguable ground. Perusal of the draft memorandum disclosed arguable issues on joint ownership of the suit property and entitlement to the estate, sufficing to warrant ventilation before the Court.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The Court found the nugatory limb satisfied because eviction and possible alienation of the property would not be adequately compensable by damages, and the Court must weigh the hardship of both sides.

Reasoning

The 1st respondent had issued a notice to vacate and filed an eviction application. If eviction were actualized and the property alienated, a successful appeal could not easily reverse the situation. The trauma to school-going children in occupation could not be compensated by damages. Balancing the conflicting claims, the applicants' hardship was greater.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal would be rendered nugatory - before relief can be granted.
  • It is sufficient for an applicant to raise a single bona fide arguable point; the appeal need not be one that will necessarily succeed.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or whether damages will reasonably compensate the aggrieved party, considering the circumstances of each case and the conflicting claims of both sides.

Court orders

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  1. 1.Stay of execution of the orders made on July 14, 2022 in Succession Appeal No 4 of 2020, pending hearing and determination of the appeal
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (8)

  • Housing Finance Company of Kenya Limited v Sharock Kher Mohamed Ali Hirji & Anor
    [2015] eKLR
  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    Civil Appl No Nai 93 of 2002 (UR); [2002] 1 EA 227
  • Republic v Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    Civil Application Nai. 31 of 2012
  • Damji Pragvia Mandavia v Sarah Lee Household and Body Care (K) Ltd
    Civil Application Nrb No 345 of 2004 (UR)
  • James Thomas Andafu v Joseph Makokha Akhulunya
    [2018] eKLR
  • Yusuf Kifuma Chanzu v Equity Bank Limited and Another
    [2014] eKLR
  • African Safari Club Limited vs Safe Rentals Limited
    Nai Civ. App [2010] eKLR
On appeal from
High Court
Succession Appeal No 4 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Opondo & another v Sanya & another (Civil Application E029 of 2023) [2023] KECA 662 (KLR)", Case Analysis (2023). Civil Application (rule 5(2)(b)) arising from Succession Appeal No 4 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/662/eng@2023-06-09

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