Indure & another v Wanyama (Civil Application E145 of 2023) [2024] KECA 832 (KLR)
The bottom line
#Kenya's Court of Appeal halted the distribution of a Bungoma estate because executing the judgment before the appeal would make winning it meaningless.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory if stay of execution is not granted
- 3.Whether the appeal is incompetent for want of prior leave to appeal
Key legal issues
#Whether the intended appeal is arguable
The appeal is arguable, principally on the contention that the learned Judge erred in holding that the respondent was a widow of the deceased despite a subsisting monogamous marriage.
The court reiterated that an arguable appeal is one worthy of consideration, not one that must succeed. The applicants argued that the 1st applicant and the deceased had been in a monogamous marriage under the African Christian Marriage and Divorce Act, so the deceased lacked capacity to contract another marriage, yet the High Court found the respondent to be a wife and dependant. The court found this raised an arguable issue.
Whether the appeal would be rendered nugatory if stay is refused
The appeal would be rendered nugatory if the judgment were executed and the grant confirmed and the estate distributed on the terms decreed.
Adopting the nugatory jurisprudence in Reliance Bank v Norlake and Fleur Investments, the court accepted that once the estate is distributed in accordance with the decree, a successful appeal would be of little or no legal consequence because the distribution would already have occurred, satisfying the second limb of the Rule 5(2)(b) test.
Whether the appeal is incompetent for want of leave to appeal
The contention that leave was not obtained is a matter for a striking-out application under Rule 86 and cannot defeat a Rule 5(2)(b) application.
The respondent argued the appeal was incompetent because leave was not first obtained. The court held that such a challenge belongs in a striking-out application under Rule 86 of the Court of Appeal Rules, which was not before it, and therefore declined to determine competence on this application.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that it will be rendered nugatory if the orders sought are declined and the appeal ultimately succeeds.
- An arguable appeal need not be one that will necessarily succeed; it suffices that it is worthy of consideration.
- The meaning of 'nugatory' is not confined to worthless, futile or invalid; it also means trifling, and must be assessed case by case.
Court orders
#- 1.Stay of execution of the judgment and decree in Bungoma High Court Succession Cause No. 367 of 2011 issued on 16th November 2021 pending the hearing and determination of Appeal No. 18 of 2022
- 2.Costs of the application shall be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Succession Cause No. 367 of 2011
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we allow the application in terms of prayer (b) thereof and order a stay of execution of the judgment and decree in Bungoma High Court Succession Cause No. 367 of 2011 issued on 16th November 2021 pending the hearing and determination of Appeal No. 18 of 2022.
It is established that in applications of this nature, the applicant is required to demonstrate that the appeal or intended appeal is arguable. Secondly, that the appeal or intended appeal will be rendered nugatory if the orders sought are declined, and the appeal ultimately succeeds.
As to whether the appeal is arguable, we bear in mind that an arguable appeal is not one that will necessarily succeed but one worthy of consideration.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Indure & another v Wanyama (Civil Application E145 of 2023) [2024] KECA 832 (KLR)", Case Analysis (2024). Civil Application No. E027 of 2024 (pending Civil Appeal No. 18 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/832/eng@2024-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.