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Court of AppealAllowedCivil Application No. E052 of 2023 (Nakuru) - application under Rule 5(2)(b) of the Court of Appeal Rules, 2022

Rono & 4 others v Kirui (Civil Application E036 of 2023) [2023] KECA 1543 (KLR)

Court of Appeal of Kenya
15 December 2023
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal stopped a brother from executing a land distribution that excluded his four sisters, protecting the property until their inheritance appeal is heard.

What this practically means

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Executive summary

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The Applicants, daughters of the deceased Kipkorir Arap Birir, sought injunction and conservatory orders under Rule 5(2)(b) of the Court of Appeal Rules, 2022, pending an intended appeal against the High Court's ruling of 11th November 2022, which dismissed their summons for revocation of grant as res judicata. The certificate of confirmation of grant issued on 22nd June 2016 excluded the Applicants as beneficiaries of LR Kericho/Segemik/679 and 707, and the Respondent, administrator of the estate and brother from the second house, had instructed the County Land Registrar and Surveyor to implement the distribution scheme, with execution summons fixed for hearing on 9th May 2023. The Respondent opposed, arguing the application was an appeal in disguise mounted by the first-house objectors, that the intended appeal was frivolous, and that res judicata applied to probate matters, the earlier revocation summons of 2017 having been dismissed on 31st May 2019 without appeal or review. Applying the settled principles in Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the draft appeal raised two arguable issues - the res judicata finding and alleged discriminatory disinheriting of the daughters contrary to Article 27 of the Constitution. On the nugatory limb, the Court held it undisputed that implementation of the scheme would exclude the Applicants from inheritance, that the prejudice was not shown to be reversible or compensable, and that preservation of the subject matter was in the interests of justice. The Court allowed the motion, restrained the Respondent from implementing the distribution scheme and from alienating, subdividing, selling or disposing of the two suit parcels pending the intended appeal, and, as a family dispute, ordered each party to bear their own costs of the application. Dated and delivered at Nakuru on 15th December 2023 before P. Nyamweya, F. Ochieng and W. Korir, Judges of Appeal.

Key legal issues

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01

Whether the Applicants demonstrated an arguable appeal

Holding

Yes. The draft memorandum raised two non-frivolous issues: whether the High Court erred in finding the application res judicata, and whether its findings were illegal and discriminatory in disinheriting the daughters.

Reasoning

The Court applied the settled Rule 5(2)(b) test from Stanley Kang'ethe Kinyanjui v Tony Ketter. It held that an arguable appeal need not succeed, only be non-frivolous, and one triable issue suffices. The contention that the daughters were disinherited contrary to Article 27 of the Constitution and the res judicata finding both warranted full argument before the Court.

p. 3
02

Whether the intended appeal would be rendered nugatory absent preservation orders

Holding

Yes. The undisputed effect of implementing the distribution scheme was the Applicants' total exclusion from the estate; the prejudice was not shown to be reversible or compensable by damages.

Reasoning

The Court noted it was undisputed that implementation of the Certificate of Confirmation of Grant would exclude the Applicants from inheriting LR Kericho/Segemik/679 and 707. That constituted adequate demonstration of prejudice, and there was no indication the situation was reversible or how the Applicants could be compensated if their appeal succeeded, so preservation of the subject matter was in the interests of justice.

p. 4

Legal principles established

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  • An arguable appeal for Rule 5(2)(b) purposes is one that is not frivolous and merits full argument; it need not necessarily succeed, and one triable issue suffices.
  • Exclusion of beneficiaries from a distribution scheme, with no indication the prejudice is reversible or compensable in damages, satisfies the nugatory-requirement limb for preservation orders.

Court orders

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  1. 1.Daniel Kipkorir Kirui restrained from implementing or executing the scheme of distribution contained in the Certificate of Confirmation of Grant issued on 22nd June 2016 in Kericho H.C. Succession Cause No. 230 of 2014, pending hearing and determination of the intended appeal
  2. 2.Daniel Kipkorir Kirui restrained from alienating, subdividing, selling, or in any other manner disposing of LR. No. Kericho/Segemik/679 and LR. No. Kericho/Segemik/707 pending hearing and determination of the intended appeal
  3. 3.Each party to bear their respective costs of the Notice of Motion dated 26th April 2023
On appeal from
High Court of Kenya (Environment and Land / Succession)
Kericho H.C. Succession Cause No. 230 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 - injunction/conservatory orders pending 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, "Rono & 4 others v Kirui (Civil Application E036 of 2023) [2023] KECA 1543 (KLR)", Case Analysis (2023). Civil Application No. E052 of 2023 (Nakuru) - application under Rule 5(2)(b) of the Court of Appeal Rules, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1543/eng@2023-12-15

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