Fresiah Mugure Maina & 3 Others v Joseph Tobiko Pertet & Another
The bottom line
#Kenya's Court of Appeal refused to pause a will ruling because the family offered no real evidence the appeal would be pointless without one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if the ruling is not stayed, the intended appeal would be rendered nugatory
Key legal issues
#Twin principles for stay under rule 5(2)(b)
An applicant must show an arguable appeal and that the appeal would be rendered nugatory absent a stay; failure on the nugatory limb is fatal
The court restated the settled test from Githunguri v Jimba and related authorities. Even assuming arguability, the applicants produced no evidence that beneficiaries intended to dispose of their shares; the 1st applicant was herself the beneficiary of the order sought to be stayed, so refusal could not render the appeal nugatory.
Burden of proof on objectors to a will
The burden of proving that a will was not properly drawn, executed, or that the deceased lacked capacity lies on the objectors
The High Court had held that objectors ought to have summoned the drafting advocate for cross-examination or adduced handwriting expert evidence, and the medical report did not certify lack of mental capacity. The Court of Appeal noted this reasoning but expressly avoided expressing views on the appeal's merits.
Legal principles established
#- Jurisdiction under rule 5(2)(b) is original and discretionary, and requires satisfaction of the twin principles of an arguable appeal and nugatory outcome
Court orders
#- 1.The application for stay of execution is dismissed
- 2.Costs of the application shall abide the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Succ. Cause No. 1525 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court ruling pending appeal
No evidence that refusal would render the appeal nugatory; only a bare assertion that beneficiaries might dispose of their shares
Costs
Costs of the application shall abide the intended appeal, being a family dispute
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the applicants to succeed, they must satisfy the twin guiding principles that the intended appeal is not frivolous or is arguable and that unless a stay is granted, the appeal or intended appeal if successful, would be rendered nugatory
For the foregoing reasons, we find that this application lacks merit and we order that the same be and is hereby dismissed. Since this is a family dispute, we order that the costs of the application shall abide the intended appeal.
There is no evidence placed before us to show that any of the beneficiaries intends to dispose of his share of the land apart from Mr. Njuguna's bare assertion that it is possible they may do so.
Issues in the judgment
#Deceased's death date (23rd April 2001) postdates the succession cause number (1525 of 2000), an apparent internal inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fresiah Mugure Maina & 3 Others v Joseph Tobiko Pertet & Another", Case Analysis (2006). Civil Application No. 41 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/255/eng@2006-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.