Rajab v Kaur & another (Civil Application E073 of 2023) [2025] KECA 40 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is sub judice given a similar pending application before the High Court
- 2.Whether invoking two concurrent jurisdictions for the same remedy amounts to abuse of court process
- 3.Whether the competency/validity of the Notice of Appeal is a bar to a rule 5(2)(b) application
- 4.Whether the intended appeal is arguable
- 5.Whether the intended appeal will be rendered nugatory if stay is not granted
Key legal issues
#Sub judice rule under Section 6 of the Civil Procedure Act
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
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.
Abuse of process by parallel applications
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
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.
Validity of Notice of Appeal at stay stage
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
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.
Arguability of the intended appeal
Grounds that there was no medical evidence of incapacity and that the fraud standard was not met rendered the intended appeal arguable
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).
Nugatory-ness
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
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.
Legal principles established
#- 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
#- 1.The application dated 24th August 2023 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
#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.
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
Both limbs must be demonstrated before a party can obtain a relief under rule 5(2) (b)
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
An order staying execution pending an appeal is not one of them.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutugi v Kanyi & 12 others (Land Case E161 of 2025) [2026] KEELC 2414 (KLR)[2026] KEELC 2414 (KLR)23 Apr 2026applied
- Chepkoech & 3 others (Suing as Former Members of the 1st Respondent, for themselves on Behalf of 143 other Former Members of the Union) v Kenya Plantation and Agriculture Workers Union (KPAWU) (Employment and Labour Relations Petition E012 of 2024) [2025] KEELRC 2870 (KLR)[2025] KEELRC 2870 (KLR)22 Oct 2025
Cite this brief
#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.