Waita (also known as) Linda Wanjiku Muthandi v Waita & another (Civil Appeal (Application) E032 of 2023) [2023] KECA 1319 (KLR)
The bottom line
#Kenya's Court of Appeal froze two estate properties pending an inheritance appeal, ruling that a single arguable ground of appeal is enough to protect estate assets.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated an arguable appeal for purposes of Rule 5(2)(b)
Yes - the grounds that the learned Judge failed to consider Section 66 of the Law of Succession Act, non-disclosure of the applicant as a beneficiary, and fraud in forms P&A 8, 5 and 12 were arguable and not frivolous
The court examined the memorandum of appeal and found pleaded grounds that the judge failed to consider that the deceased was survived by 8 children entitled to apply for administration under Section 66 of the Law of Succession Act, that the applicant was excluded through non-disclosure, and that the grant was procured by forged signatures on probate forms. These were bona fide grounds fit for full argument, satisfying the arguability limb of the Rule 5(2)(b) test even without proving a multiplicity of grounds.
Whether the appeal would be rendered nugatory absent preservation orders
Yes - the estate properties could be depleted or sold pending appeal, and no award of damages would adequately compensate the applicant
The court held that because the matter involves a succession cause and distribution of a deceased's estate, preservation of the estate properties is necessary to prevent depletion. If the properties were sold, damages would not atone the injury to the applicant, who claims to be a beneficiary. Accordingly the nugatory limb was satisfied and injunctive preservation of the two plots pending the appeal was warranted.
Whether the court could determine orders relating to parties not before it
No - although the High Court judge wrote one composite ruling answering varied applications by several applicants, most orders sought in this application concerned other parties who were not before the court, so the court could not consider those orders
The court noted that the High Court judge heard several applicants with different applications and delivered one composite ruling. Most orders sought in the present application related to those other parties. Since the parties concerned were not before the Court of Appeal, it declined to consider the said orders and confined relief to the applicant before it, granting only prayer 5.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory absent the orders sought; a single bona fide arguable ground suffices
- An arguable appeal need not necessarily succeed; it is enough that it is not frivolous and deserves full argument, and a single bona fide arguable ground suffices
- In succession matters involving distribution of a deceased's estate, preservation of the estate properties pending appeal is important; where the property may be sold and depleted, damages will not adequately compensate and the nugatory test is satisfied
Court orders
#- 1.Pending hearing and determination of the appeal in Mombasa Court of Appeal Civil Appeal No. E032 of 2023, an order of injunction restraining Edith Wangari Waita and Agnes Wamaitha, by themselves, their servants and/or agents, from charging, leasing, selling or disposing of or in any other manner dealing with or interfering with Plot No. 627/VMN, Mombasa and Plot No. 44 Sagana, or in any manner using the Grant of Letters of Administration Intestate issued on 15th August 2012, confirmed on 30th August 2013, rectified on 25th August 2014 and subsequently rectified on 9th October 2014, to National Land Commission, Kenya Breweries Limited, Chief Land Registrar or any person or institution in pursuance of or monetary benefits due to the Estate of George Francis Waita (Deceased)
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa Succession Cause No. 76 of 2012, In the Matter of the Estate of George Francis Waita (Deceased)
- Jurisdiction invoked
- Sections 3, 3A and 38 of the Appellate Jurisdiction Act Cap. 9 Laws of Kenya and Rules 5(2)(b), 44 and 106 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waita (also known as) Linda Wanjiku Muthandi v Waita & another (Civil Appeal (Application) E032 of 2023) [2023] KECA 1319 (KLR)", Case Analysis (2023). Mombasa Court of Appeal Civil Appeal No. E032 of 2023 (application under Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1319/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.