Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 9th February 2024 in intended appeal from HC Succession Cause No 2574 of 2015· [2024] KECA 1776 (KLR)

Gutuba v Wambugu & 3 others (Civil Appeal (Application) E781 of 2022) [2024] KECA 1776 (KLR)

Court of Appeal
6 December 2024
SKS. ole KantaiJMJ. MativoGNG. W. Ngenye-Macharia
1,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to block a family estate's distribution pending appeal because the applicant showed no real hardship, though the appeal itself remains arguable.

What this practically means

#

Executive summary

#
This was an application under Section 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2022, in which Mary Waraki Gituba sought a temporary injunction restraining the respondents from implementing a judgment of the High Court dated 27th September 2021 in HC Succession Cause No 2574 of 2015, in the estate of David Mwaura Karaba (deceased), pending an intended appeal. The High Court had postponed confirmation of the grant for 60 days, directed a valuation of the estate, and left final distribution orders to be made upon compliance. The applicant argued that the superior court distributed the estate in a 3:2:2:1 ratio without determining the confirmation application or hearing oral evidence, and that unilateral valuation threatened the estate's properties. Applying the settled Rule 5(2)(b) principles from Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court found the first limb satisfied: the ground that the case should have proceeded by oral rather than affidavit evidence was arguable. However, on the nugatory limb, the Court held that the applicant, herself an administratrix, had not demonstrated the hardship she would suffer; distribution had not occurred in the 3½ years since the judgment, and proceedings remained ongoing in the trial court, making the claim of imminent disposal speculative. The application was dismissed with no order as to costs, the Court noting this is a family matter. The decision below was not disturbed; the intended appeal remains pending.

Key legal issues

#
01

Arguability of the intended appeal

Holding

The ground that the succession cause ought to have proceeded by way of oral evidence rather than affidavit evidence is a bona fide arguable ground, satisfying the first prerequisite.

Reasoning

The court applied the settled test that an arguable appeal need not succeed; a single bona fide arguable point of law or fact sufficient to call for an answer from the respondent is enough. The ground that the superior court decided on affidavit evidence without an oral hearing met that threshold, without making final findings.

p. 3
02

Whether the appeal would be rendered nugatory

Holding

The applicant failed the nugatory limb; no hardship was shown, she is herself an administratrix, and the dispute remains pending before the trial court.

Reasoning

Nugatory means worthless, futile, invalid or trifling; the court weighs the conflicting claims of both sides on each case's merits. Given the applicant's role as administratrix, the lapse of 3½ years without distribution, and the ongoing proceedings, no prejudice was demonstrated and damages/reversibility analysis did not favour intervention.

p. 4

Legal principles established

#
  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal (or intended appeal) is arguable and that it would be rendered nugatory if the relief is not granted; one bona fide arguable ground suffices.
  • In considering a Rule 5(2)(b) application the court must not make definitive or final findings of fact or law lest it embarrass the hearing of the main appeal.
  • The nugatory test requires consideration of whether what is to be stayed is reversible or, if not, whether damages would reasonably compensate the aggrieved party, weighing the conflicting claims of both sides on the facts of each case.

Court orders

#
  1. 1.The applicant's application dated 9th February 2024 is dismissed
  2. 2.No order as to costs, this being a family matter

Authorities

#

Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Law of Succession ActSection 71(2)(d)

Cases cited (3)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Baker v Canada (Minister of Citizenship and Immigration)
    [1992] 2 SCR 817
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] I EA 227
On appeal from
High Court
HC Succession Cause No 2574 of 2015, in the matter of the Estate of David Mwaura Karaba-deceased
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gutuba v Wambugu & 3 others (Civil Appeal (Application) E781 of 2022) [2024] KECA 1776 (KLR)", Case Analysis (2024). Notice of Motion dated 9th February 2024 in intended appeal from HC Succession Cause No 2574 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1776/eng@2024-12-06

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