Jwg & 1 other v Cmg & 1 other
The bottom line
#Kenya's Court of Appeal froze a guardianship judgment over an elderly mother's care, letting her current caregivers keep managing her affairs until the appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable, not frivolous, on grounds that the judge appointed the respondents without any application and without evaluating their suitability contrary to Section 26 of the Mental Health Act.
The court examined the draft memorandum of appeal attached to the application, which contended that the learned Judge erred in appointing the respondents without any application for their appointment contrary to Section 26 of the Mental Health Act and failed to evaluate their suitability. On those grounds the court concluded the intended appeal was not frivolous but arguable, satisfying the first limb of the Rule 5(2)(b) test.
Nugatory value and irreversibility
The appeal would be rendered nugatory because implementation of the guardianship judgment before appeal would disrupt the mother's care and financial management, as demonstrated by uncontroverted affidavits.
The court applied the principle that a key consideration is whether what is sought to be stayed, if allowed to happen, is reversible. Relying on uncontroverted supporting affidavits showing the mother resides with and is under the care of the 1st applicant, the court found implementation before appeal would disrupt her care and financial management, so the second limb of the test was met.
Legal principles established
#- An appeal is not frivolous where the record discloses arguable grounds, and stay will issue where uncontroverted evidence shows execution before appeal would disrupt the care and financial management of a vulnerable person
Court orders
#- 1.Prayers 3 and 4 of the application dated 4th February 2025 granted
- 2.The judgment of the High Court delivered on 28th January 2025 stayed in its entirety pending the hearing and determination of the applicants' intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jwg & 1 other v Cmg & 1 other", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1975/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.