Sussy Khaadi Nandama & 1 other v Yvonne Tunai & 1 other
The bottom line
#The Court of Appeal refused to pause a High Court order for forensic examination of documents in a succession dispute, because the applicants showed no irreversible harm.
What this practically means
#Executive summary
#Key legal issues
#What are the requirements for relief under Rule 5(2)(b) of the Court of Appeal Rules?
Relief under Rule 5(2)(b) requires two conjunctive conditions: the intended appeal must be arguable, and the applicant must show that, absent the relief, a successful appeal would be rendered nugatory. Failure to satisfy either limb is fatal.
The Court described the Rule 5(2)(b) jurisdiction as original, independent and discretionary, invoked to preserve the efficacy of the appellate jurisdiction rather than as an appeal from, or rehearing of, the High Court's decision. It distilled two conditions settled in a long line of authorities including Stanley Kang'ethe Kinyanjui v Tony Ketter: arguability of the intended appeal, and the nugatory aspect. Both requirements are conjunctive; failure on either is fatal to the application.
Was the intended appeal arguable?
Yes. The grounds raised legitimate, non-frivolous questions on the sequencing of evidentiary inquiries, the scope of case-management powers, and the interaction between the Law of Succession Act and the Evidence Act; arguability requires only a single bona fide point deserving consideration.
The Applicants argued the intended appeal raised bona fide questions: whether the Judge erred in ordering forensic examination before deciding whether the notes were recognizable testamentary documents under the Law of Succession Act; whether the order concerned documents whose originals had not been produced; whether case-management powers were exceeded; and whether Article 50 fairness was infringed. Without expressing concluded views, the Court found these legitimate questions and held the threshold of arguability is low - a single bona fide point suffices.
Would the intended appeal be rendered nugatory if the forensic examination proceeded?
No. The impugned order is interlocutory and evidentiary; it determines neither authenticity, admissibility, nor substantive rights, and the apprehended prejudice is speculative and contingent on future judicial determinations. The substratum of the appeal remains intact.
The Court held the order merely facilitates expert evidence: preparation of a forensic report is not synonymous with its admission, and admissibility, methodology, persuasiveness and weight remain within the High Court's province. The Applicants retain every safeguard - objection, cross-examination of the expert, adducing contrary evidence. Their apprehension that the examination would 'substantially change' the proceedings depends on a succession of future rulings and cannot constitute the irreversible prejudice the nugatory limb contemplates.
Does the distinction between a stay of execution and a stay of proceedings affect the exercise of discretion?
Yes. Because the orders sought would functionally halt the High Court proceedings, the application is in substance for a stay of proceedings - a more intrusive remedy warranting great caution.
An order which functionally halts proceedings arrests the ordinary progress of litigation before a court lawfully seized of the dispute, interrupts a litigant's right to expeditious determination, and implicates access to justice. While the Court must remain vigilant to preserve the effectiveness of its appellate jurisdiction, it must equally guard against unnecessarily interrupting proceedings before courts exercising lawful jurisdiction. This caution framed the analysis and weighed against relief where the alleged prejudice was speculative.
Legal principles established
#- An application under Rule 5(2)(b) must satisfy two conjunctive conditions - an arguable intended appeal and the nugatory aspect; failure to satisfy either limb is fatal to the application.
- The Rule 5(2)(b) jurisdiction is original, independent and discretionary, exercised neither as an appeal from the High Court's decision nor as a rehearing of the application before that court.
- The arguability threshold is low: an intended appeal need only raise a single bona fide point deserving judicial consideration and need not be one that would necessarily succeed.
- Arguability alone does not satisfy the second limb; the applicant must additionally demonstrate prejudice incapable of effective redress if the appeal eventually succeeds.
- Relief whose practical effect is to halt proceedings before a trial court is a stay of proceedings - a more intrusive remedy over which the Court exercises great caution.
- The preparation of a forensic report is not synonymous with its admission in evidence and does not predetermine its probative value; admissibility, methodology and weight remain for the trial court, and a litigant retains all procedural safeguards to challenge the report.
Court orders
#- 1.The Notice of Motion dated 23rd October, 2025 (the application under Rule 5(2)(b)) is dismissed.
- 2.Costs of the application are awarded to the Respondents.
- On appeal from
- High Court of Kenya, Milimani
- Milimani High Court Succession Cause No. E1564 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (special interlocutory jurisdiction to grant stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sussy Khaadi Nandama & 1 other v Yvonne Tunai & 1 other", Case Analysis (2026). Notice of Motion dated 23rd October, 2025 (Court of Appeal application number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1520/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.