Peter Kamau Njuguna v Stephen Magichu } Joseph Warari } & 2 others

The Court adopted, with counsel's agreement, the settled two-limb test for Rule 5(2)(b) relief. The applicant had to demonstrate both an arguable appeal and that success would be rendered nugatory without a stay. The Court then asked whether those principles could be engaged on the facts and found they could not, because the orders sought to be stayed were incapable of execution. The statement of the test is a restatement of settled principles rather than the ratio of this ruling.

Section 71(1) of the Law of Succession Act (Cap 160) requires the holder of a grant, after six months or a shorter period directed by the court, to apply for confirmation of the grant to empower distribution of capital assets. The grant here, made to the applicant and two of the respondents, had not been confirmed - a fact counsel for the applicant conceded. Distribution of the estate, including the disputed land Githunguri/Ikinu/320, could therefore only proceed in accordance with the Act upon confirmation.

The Court noted that nothing stops the parties agreeing on sub-division to enable the superior court to know the identities and shares of all persons beneficially entitled to the estate, as the proviso to section 71(2) of the Act contemplates. However, the judgment of Ang'awa J did not authorise the taking over of shares; that awaits confirmation of the grant, which had not occurred. Any breach of the orders is a matter for the superior court that made them.

The Court reasoned that the judgment did not authorise the sub-division or occupation alleged, and that the law does not permit the respondents to execute orders made in a succession cause before confirmation of the grant. Since the orders could not lawfully be executed, no stay was necessary or available, and the application failed on that threshold rather than on the merits of arguability.

The respondents insisted the appeal already filed was incompetent because it was lodged outside the time extended on 23rd March 2001. Counsel for the applicant contended spiritedly that the appeal was filed within the enlarged time. Faced with that live dispute, the Court held that the validity or otherwise of the appeal could not be resolved within a Rule 5(2)(b) motion and left the question open.