Rono & 4 others v Kirui (Civil Application E036 of 2023) [2023] KECA 1543 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated an arguable appeal
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.
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.
Whether the intended appeal would be rendered nugatory absent preservation orders
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.
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.
Legal principles established
#- 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
#- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.