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Court of AppealAllowedCivil Application No. E145 of 2022 (as stated in the application dated October 3, 2022)· [2023] KECA 1245 (KLR)

Manyara v Manyara & another (Civil Appeal (Application) E145 of 2021) [2023] KECA 1245 (KLR)

Court of Appeal
6 October 2023
JMJamila MohammedFTF. TuiyottJNJoel Ngugi
2,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal blocked the transfer and subdivision of inherited family land until a succession appeal is fully heard, protecting beneficiaries already living on it.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules, 2022, supported by Sections 3, 3A and 3B of the Appellate Jurisdiction Act, seeking a stay of execution of a High Court judgment of March 4, 2021 in a succession dispute. The High Court had issued a certificate of confirmation of grant appointing the 1st respondent as an administrator and ordering distribution of the deceased's estate, which consisted mainly of landed property. The applicant, dissatisfied, had lodged an appeal, and a companion appeal was filed by the 2nd respondent. Meanwhile the 1st respondent sought execution at the High Court, including authorization for the Deputy Registrar to sign transfer documents and for a surveyor to subdivide the estate land. The High Court declined to adjudicate the stay application on its merits and directed the parties to this Court with a limited fourteen-day stay. The Court of Appeal heard this application contemporaneously with its companion after counsel for the 1st respondent dropped off the virtual session. Applying the twin principles from Stanley Kang'ethe Kinyanjui v Tony Keter, the Court found the sixteen grounds of appeal, including allegations of judicial bias and misapplication of the Law of Succession Act, were not frivolous, and that execution by survey, subdivision and issuance of new titles would render the appeal nugatory, since some beneficiaries had been settled on the land with permanent homes before the deceased's death. The application was allowed, with the judgment and certificate of confirmation of grant stayed until the appeal is heard and determined, the orders applying mutatis mutandis to the companion application.

Key legal issues

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01

Whether the appeal is arguable under Rule 5(2)(b)

Holding

Yes. Sixteen grounds including allegations of judicial bias and misapplication of the Law of Succession Act to administration and distribution of the estate are not frivolous.

Reasoning

The appeal being a first appeal raised legal and factual questions on bias of the trial judge, the identification of administrators, and the mode of distribution of the estate. Such questions cannot be characterised as frivolous; a single bona fide arguable ground is sufficient at this interlocutory stage.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

Yes. Execution would entail survey, subdivision and issuance of new titles over estate land, potentially displacing settled beneficiaries and defeating the appeal irreversibly.

Reasoning

The estate consists largely of landed properties. Execution would involve appointment of a surveyor, subdivision and transfer, with sunk costs and possible relocation of beneficiaries settled on their parcels before the deceased's death, and land passing to third parties. Such steps are not reversible, rendering the appeal nugatory.

p. 5

Legal principles established

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  • Rule 5(2)(b) confers original and discretionary jurisdiction on the Court to preserve the substratum of an appeal, and an applicant must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory.
  • An arguable appeal need not have a high probability of success; a single bona fide arguable ground suffices.

Court orders

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  1. 1.Application allowed as prayed
  2. 2.Stay of execution of the judgment and certificate of confirmation of grant both dated March 4, 2021 until the appeal is heard and determined
  3. 3.The orders to apply mutatis mutandis in Civil Application No E146 of 2021

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 43
  • Court of Appeal Rules, 2022Rule 44
  • Law of Succession Act

Cases cited (8)

  • Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin [1963] Ltd.
    [1990] KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
On appeal from
High Court
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b), 43 and 44 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Manyara v Manyara & another (Civil Appeal (Application) E145 of 2021) [2023] KECA 1245 (KLR)", Case Analysis (2023). Civil Application No. E145 of 2022 (as stated in the application dated October 3, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1245/eng@2023-10-06

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