Susan Wanjiru Thuo & 2 others v Waiharo Harrison Ngeta & 1 other
The bottom line
#Kenya's Court of Appeal refused to pause a succession case, ruling that probate can be revoked later if a will is ultimately proven forged.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
Yes; an arguable appeal is not one that must necessarily succeed, and the court was not prepared to say the appeal was frivolous
The intended appeal was interlocutory, challenging the trial judge's exercise of discretion in declining to subject the will and its three counterparts to forensic scrutiny. On the memorandum of appeal grounds, and given the low threshold that an arguable appeal need not succeed, the court found the appeal not frivolous.
Whether the appeal would be rendered nugatory if stay is not granted
No; a grant of probate is reversible and any resulting loss is compensable, so the nugatory test failed
Probate is not irreversible: it can be revoked under section 76 of the Succession Act and distributed assets recovered from beneficiaries. Estate assets are identifiable and traceable, so the applicants could be compensated. The ruling was interlocutory and did not preclude later challenges, while a stay would harm legitimate beneficiaries and impede access to justice.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability test and the nugatory test to obtain a stay of execution, injunction or stay of proceedings
- A grant of probate is not irreversible; probate granted can be revoked under section 76 of the Succession Act and estate assets, if distributed, can be recovered through appropriate legal proceedings
- A stay of proceedings is a drastic order to be deployed in extremely rare cases and where exceptional circumstances warrant such orders, as it may impede the right to access to justice
Court orders
#- 1.Application dated 29th November, 2024 dismissed with costs
- On appeal from
- High Court of Kenya
- Nakuru High Court Succession Cause No. E76 of 2022
- Jurisdiction invoked
- 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, "Susan Wanjiru Thuo & 2 others v Waiharo Harrison Ngeta & 1 other", Case Analysis (2025). Civil Appeal No. E118 of 2024 (Application dated 29th November, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1291/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.