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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment· [2025] KECA 1975 (KLR)

Jwg & 1 other v Cmg & 1 other

Court of Appeal
21 November 2025
930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judge-panel ruling of the Court of Appeal at Nairobi on a Rule 5(2)(b) application for stay of execution by Josephine Wanjiru Gacheru and Stephen Mungai Gacheru. The applicants had petitioned the High Court under the Mental Health Act for appointment as guardians of their mother, MKG, who suffers from dementia. By judgment delivered on 28th January 2025, Riechi, J. appointed the applicants jointly with the respondents, MMG and CGG, as guardians and managers of MKG's estate. Aggrieved, the applicants filed a Notice of Appeal and moved the Court of Appeal for stay pending the intended appeal. They argued the intended appeal was arguable: the Judge appointed the respondents without any formal application contrary to Section 26 of the Mental Health Act, and without evaluating their suitability or considering the patient's best interests. They contended the appeal would be rendered nugatory because the respondents, who have never participated in the mother's care, would cause disruption to caregiving and estate administration. The respondents, despite service, filed no replying affidavit or submissions and opposed orally, urging that joint guardianship placed all children on equal footing. Applying the Kinyanjui v Ketter principles, the court found the appeal arguable and held that, on uncontroverted evidence that the mother resides with and is under the care of the 1st applicant, implementation before appeal would disrupt her care and financial management. The court granted the application, staying the High Court judgment in its entirety pending the intended appeal, with costs to abide the appeal's outcome. The judgment was delivered by two judges following the death of Fred Ochieng, JA, under Rule 34(4).

Key legal issues

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01

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 2
02

Nugatory value and irreversibility

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Prayers 3 and 4 of the application dated 4th February 2025 granted
  2. 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. 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

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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, "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.