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Court of AppealDismissedCivil Application No. Nai.158 of 2013 (UR 107/2013)· [2014] KECA 288 (KLR)

Daniel Njenga Muiruri Joseph Mwaniki Muiruri Moses Wainaina v Esther Njeri Mburu Ann Wangui Muthee

Court of Appeal
24 October 2014
PKP. Kihara KariukiJMJ. W. MweraPKP. O. Kiage
1,217 words in judgment
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The bottom line

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The Court of Appeal refused to pause the sale of a family property because the applicants never showed the court what they intended to appeal about.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court ruling by Kimaru, J. dated 7th May 2013 in Nairobi HC Succession Cause No. 2099 of 2007, which, following mediation, directed the sale of a commercial property in Thika Municipality (LR No. Thika Municipality No. 4953/47) and equal division of proceeds among six beneficiaries of the estate of Titus Muiruri Doge. The applicants, three sons of the deceased and brothers of the respondents, argued through Mr. Masake that the appeal to be lodged as Civil Appeal No. 141 of 2013 was arguable, invoking Section 28 of the Law of Succession Act, and that without a stay the appeal would be rendered nugatory, claiming economic prejudice to their widowed and sickly mother, Ruth Wanjiru Muiruri, whose only source of income the property was said to be. The respondents, though duly served, did not attend but had filed replying affidavits. The Court restated the twin test for Rule 5(2)(b): an arguable appeal and nugatory-ness if stay is refused. It found the applicants had placed no memorandum of appeal or grounds before it, could not identify any arguable ground, and had not substantiated the alleged prejudice, noting the mother was herself a beneficiary of the sale proceeds. The application was dismissed with each side bearing its own costs, and the parties were directed to proceed to argue the intended appeal. The ruling is a single judgment of the full bench of Kihara Kariuki, Mwera and Kiage, JJ.A., with no separate opinions or dissents.

Key legal issues

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01

Whether the applicants established the twin conditions for stay under Rule 5(2)(b)

Holding

The application failed on both limbs: no grounds of appeal were exhibited, so arguability could not be assessed, and nugatory-ness was not demonstrated since the widow would share in the sale proceeds and the economic prejudice was unsubstantiated

Reasoning

The Court restated the settled twin test for Rule 5(2)(b) applications: arguability of the appeal and the nugatory-ness of its success if stay is denied. Although a single bona fide ground suffices, the applicants produced no draft memorandum of appeal, no stated grounds, and gave no explanation why the widow Ruth could not move herself. Their claim of economic prejudice to the mother was unsupported: rents and property value were undisclosed, and as a beneficiary she would receive sale proceeds. Respondents had filed replying affidavits opposing the motion.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy two conditions: an arguable appeal, and that the appeal will be rendered nugatory if stay is not granted; a single bona fide arguable ground suffices
  • An arguable appeal need not be one that must necessarily succeed; it suffices that it raises a bona fide ground fit to be argued fully and is not frivolous
  • A party seeking stay must place before the Court the actual grounds of appeal (e.g. a draft memorandum) so the Court can assess arguability; vague assertions of error will not suffice

Court orders

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  1. 1.Application for stay of execution of the ruling of 7th May 2013 dismissed
  2. 2.Each side to bear its own costs
  3. 3.Parties to proceed to argue Civil Appeal No. 141 of 2013
On appeal from
High Court of Kenya at Nairobi
H.C. Succession Cause No. 2099 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution or injunction pending appeal)

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, "Daniel Njenga Muiruri Joseph Mwaniki Muiruri Moses Wainaina v Esther Njeri Mburu Ann Wangui Muthee", Case Analysis (2014). Civil Application No. Nai.158 of 2013 (UR 107/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/288/eng@2014-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.