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Court of AppealDismissedCivil Application E062 of 2024· [2024] KECA 1904 (KLR)

Mugo v Mugo & another

Court of Appeal
11 October 2024
1,944 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a succession ruling because the applicant showed no real loss if estate administration continued during the appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (M'Inoti, Ngugi and Achode, JJA) on a rule 5(2)(b) application by Marion Wanjiru Mugo seeking stay of execution of a High Court (Family Division) ruling by Chemitei, J delivered on 25th January 2024 in HC Succession Cause No. 3442 of 2003, which dismissed her application to remove the respondents as administrators of the estate of the late David Mari Mugo and ordered her to return estate documents in her custody. The applicant sought stay of that ruling and an injunction restraining the respondents from disposing of estate assets pending an intended appeal. The respondents opposed, arguing she had not shown an arguable appeal or irreparable loss, that succession appeals require leave which was never sought, and that security for costs should be ordered. The court applied the settled twin principles under rule 5(2)(b): arguability and the nugatory aspect. It found the single ground on non-disclosure of information regarding the sale of Gatatha Farmers Cooperative shares arguable, but held the nugatory limb failed: the applicant did not contest the mode of distribution under the confirmed grant, showed no prejudice or intermeddling, and the appeal would not be rendered nugatory absent stay. The court also held that security for costs is not a precondition to relief under rule 5(2)(b). The application was dismissed with costs to abide the outcome of the appeal. The decision below was not disturbed; the ruling binds no lower court beyond its application of rule 5(2)(b) principles.

Key legal issues

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01

Arguability of the intended appeal

Holding

The single ground on non-disclosure of information about the sale of Gatatha shares was arguable, not frivolous.

Reasoning

The court examined the memorandum of appeal and noted an arguable appeal need not succeed. The ground that the Judge erred in failing to consider non-disclosure of information on the sale of shares was found worth ventilating; the leave-to-appeal question was left for the intended appeal.

p. 3
02

Nugatory aspect

Holding

The appeal would not be rendered nugatory absent stay because the mode of distribution is not contested and no prejudice or intermeddling was shown.

Reasoning

Applying the test of reversibility or compensability, the court found the applicant failed to show loss if administrators completed administration per the confirmed grant she consented to. Releasing documents would not enable non-compliance with the distribution she agreed to.

p. 4
03

Security for costs under rule 5(2)(b)

Holding

Security for costs is not a precondition; the court may grant relief on such terms as it deems just.

Reasoning

Rule 5(2)(b) does not make an undertaking as to costs a precondition. The court is empowered to grant any of the reliefs on just terms, so a party cannot be denied a remedy for failure to give security for costs.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must show an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • One arguable ground suffices for a stay under rule 5(2)(b); a multiplicity of grounds is unnecessary.
  • An undertaking as to costs is not a precondition for relief under rule 5(2)(b).

Court orders

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  1. 1.The application dated 14th February 2024 is dismissed
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (4)

  • Stanley Kangethe Kinyanjui v Tony Peter and 5 others
    [2013] eKLR

    Statement of the two principles under rule 5(2)(b)

  • Trust Bank Limited & Another v Investech Bank Ltd and 3 Others
    [2000] KECA 11 (KLR)

    Rule 5(2)(b) jurisdiction is original and discretionary; twin requirements of arguability and nugatory aspect

  • Yellow Horse Inns Ltd vs A.A Kawir Transporters & 4 Others
    [2014] eKLR

    One arguable ground suffices; no multiplicity of points needed

  • Kenya Industrial Estate & Another v Matilda Tenge Machia
    Civil Application No. 211 of 2020

    Test for whether an appeal will be rendered nugatory - reversibility or compensability in damages

On appeal from
High Court (Family Division) at Nairobi
HC Succession Cause No. 3442 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Mugo v Mugo & another", Case Analysis (2024). Civil Application E062 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1904/eng@2024-10-11

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