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Court of AppealDismissedCivil Application No. Nai. of 2023 (rule 5(2)(b) application dated 24th August 2023)

Rajab v Kaur & another (Civil Application E073 of 2023) [2025] KECA 40 (KLR)

Court of Appeal
24 January 2025
4,060 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal dismissed Asha Rajab Ali's bid to pause the handling of a disputed estate, ruling the appeal would not be useless if the estate was administered meanwhile.

What this practically means

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Executive summary

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This is a rule 5(2)(b) ruling of the Court of Appeal (Murgor, Nyamweya and Odunga, JJAA) in a succession dispute over the estate of Inderjeet Singh, who died on 10th May 2018 leaving a Will dated 15th June 2016. The High Court at Mombasa, by ruling delivered on 4th August 2023, invalidated the Will for lack of testamentary capacity and fraud, found the deceased died intestate, and directed the 1st respondent and the applicant's son to file a joint petition for letters of administration intestate. The applicant, who was bequeathed the Kenyan assets and whom the trial court found to have lived with the deceased as a mutual spouse, sought stay of execution and of further proceedings pending an intended appeal. The 1st respondent raised a preliminary objection that a similar application was pending before the High Court, rendering this one sub judice and an abuse of process. The Court held that the sub judice rule targets only the subsequent application, and this application was first in time; it also cautioned that pursuing identical remedies in two forums may amount to abuse of process. Following National Industrial Credit Bank v Wasike, it held that a pending application to strike out the Notice of Appeal cannot defeat a stay application, since rule 5(2)(b) requires only a lodged, not a valid, notice. The intended appeal was found arguable on the issues of mental capacity and the standard of proof of fraud, but the Court found no risk of the appeal being rendered nugatory: distribution of the estate could not occur before confirmation of the grant, and any alleged wasting of estate assets amounts to intermeddling for which other remedies exist. The application was dismissed with no order as to costs, being a family succession matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is sub judice given a similar pending application before the High Court
  2. 2.Whether invoking two concurrent jurisdictions for the same remedy amounts to abuse of court process
  3. 3.Whether the competency/validity of the Notice of Appeal is a bar to a rule 5(2)(b) application
  4. 4.Whether the intended appeal is arguable
  5. 5.Whether the intended appeal will be rendered nugatory if stay is not granted

Key legal issues

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01

Sub judice rule under Section 6 of the Civil Procedure Act

Holding

The sub judice rule applies only to the subsequent suit; since this application (24th August 2023) predates the High Court application (15th March 2024), it cannot be stayed on the strict application of the rule

Reasoning

The court traced the rationale of the sub judice rule to avoiding multiplicity of suits and preserving judicial resources, but emphasized the rule targets later-instituted proceedings. As this Court of Appeal application was first in time, the rule did not mandate its stay.

p. 4
02

Abuse of process by parallel applications

Holding

Filing multiple applications in different courts seeking the same orders may amount to abuse of process - 'playing lottery with the court process' - though the court said no more on it

Reasoning

Relying on Mitchell v DPP, the court observed that invoking two concurrent jurisdictions in pursuit of the same remedy in the hope of succeeding in at least one forum is an abuse. The court flagged but did not dismiss on this basis.

p. 5
03

Validity of Notice of Appeal at stay stage

Holding

Rule 5(2)(b) requires only a lodged notice of appeal, not a valid one; a pending striking-out application does not defeat a stay application

Reasoning

Following National Industrial Credit Bank Ltd v Aquinas Francis Wasike, the court held that validity of a Notice of Appeal is dealt with under Rule 80, and a striking-out application not before the Court cannot be a basis for refusing stay.

p. 5
04

Arguability of the intended appeal

Holding

Grounds that there was no medical evidence of incapacity and that the fraud standard was not met rendered the intended appeal arguable

Reasoning

The intended appeal challenged the trial court's findings on mental capacity and fraud. The court held that on those grounds the appeal could not be said to be frivolous, satisfying the first limb of rule 5(2)(b).

p. 6
05

Nugatory-ness

Holding

Execution of the intestacy administration order would not render the appeal nugatory; the applicant could still present her claim during administration, and any disposition could be reversed on success

Reasoning

The court found the apprehension of dispossession far-fetched: distribution cannot occur until confirmation of the grant; if the appeal succeeds, the will would be restored and consequential proceedings set aside. There was also no evidence of eviction risk.

p. 7

Legal principles established

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  • At a rule 5(2)(b) application, the Court is not concerned with the validity of the Notice of Appeal; validity is determined under Rule 80 on an application to strike out
  • Both limbs of rule 5(2)(b) - arguability and nugatory-ness - must be demonstrated before stay can be granted
  • A single arguable point suffices to establish the arguability limb
  • An order staying execution pending appeal is not a remedy for intermeddling with a deceased's estate

Court orders

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  1. 1.The application dated 24th August 2023 is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
Mombasa High Court Succession Cause No. 38 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2020

Relief refused

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Stay of execution of the High Court ruling of 4th August 2023 and stay of further proceedings in Mombasa High Court Succession Cause No. 38 of 2018

The applicant failed to demonstrate that the appeal would be rendered nugatory; the estate administration process is not irreversible and any alleged wasting of the estate is intermeddling addressable under other remedies

p. 7

Costs

No order as to costs, each party bearing their own costs, the matter being a succession matter involving family members of the deceased

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, we find that the applicant has failed to prove that the appeal, should it succeed, will be rendered nugatory in which event the application dated 24th August 2023 fails and is dismissed, but being a succession matter involving family members of the deceased, with no order as to costs.
p. 7Final orders - dismissal of the rule 5(2)(b) application with no order as to costs
at the point of a rule 5(2)(b) application, the Court is not concerned with the validity or otherwise of that Notice of Appeal since the Rule does not talk about a valid Notice of Appeal
p. 5Validity of Notice of Appeal irrelevant at stay stage
Both limbs must be demonstrated before a party can obtain a relief under rule 5(2) (b)
p. 6Cumulative conditions for stay pending appeal
An appeal need not raise a multiplicity or any number of such points, and a single arguable point is suficient to earn an applicant such a relief, subject to the satisfaction of the second condition
p. 6Single arguable point suffices
An order staying execution pending an appeal is not one of them.
p. 7Stay of execution is not a remedy for intermeddling

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rajab v Kaur & another (Civil Application E073 of 2023) [2025] KECA 40 (KLR)", Case Analysis (2025). Civil Application No. Nai. of 2023 (rule 5(2)(b) application dated 24th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/40/eng@2025-01-24

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