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Court of AppealPartially AllowedCivil Appeal (Application) No. 72 of 2016

In Re Estate of Leo Apopa (Deceased) [2018] KECA 224 (KLR)

Court of Appeal of Kenya
18 October 2018
1,900 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a partial stay in a family estate dispute, but widows kept their life interest in two prime properties.

What this practically means

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Executive summary

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The applicants, two sons and co-administrators of the estate of Philip Leo Apopa (deceased), applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a ruling of Majanja, J. delivered on 10 August 2016 in Kisumu H.C. Succession Cause No. 370 of 2006. The High Court had revoked the existing grant, issued a fresh grant, confirmed it in terms of a consent, directed that Kisumu/Municipality 5/75 and Kisumu/Muhoroni/1098 be held by the administrators with all income applied for the maintenance of the three surviving widows during their lifetimes and thereafter shared equally among the five houses, discharged previous orders, and ordered Thomas Ochieng Apopa to deliver up title documents and a list of unadministered assets within fourteen days. Before the Court of Appeal, the respondents neither filed a response nor appeared. Applying the settled two-limb Rule 5(2)(b) test drawn from Stanley Kang'ethe Kinyanjui v Tony Keter, the Court found the intended appeal arguable, but held that the applicants had failed to demonstrate the appeal would be rendered nugatory, since the impugned orders favoured the surviving widows and would cause no prejudice to the applicants even if the appeal succeeded. The Court dismissed the application in respect of the life-interest distribution orders but granted a limited stay of the order compelling delivery of title documents and the list of unadministered assets, conditional on Thomas not selling, charging or disposing of the properties pending appeal. Being a family matter, no order as to costs was made. The decision did not disturb the High Court ruling; it is an interlocutory determination pending the main appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the memorandum of appeal raised arguable points, including whether the mode of distribution of the estate was carried out in accordance with the law

Reasoning

The Court applied the settled test under Rule 5(2)(b) that an arguable ground need not succeed but must not be frivolous, and a single arguable point suffices. It deliberately refrained from going into the merits, which it said are the preserve of the bench hearing the main appeal, and was satisfied the applicants had crossed the arguability threshold.

p. 4
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The Court found the appeal would not be rendered nugatory because the impugned orders favoured the surviving widows and would cause no prejudice to the applicants even if the appeal succeeded

Reasoning

Applying Reliance Bank Ltd v Norlake Investments Ltd, the Court weighed the conflicting claims on the peculiar facts. It noted the distribution orders gave the widows a life interest with the properties ultimately shared equally among the five houses, so no prejudice to the applicants would arise; accordingly the nugatory limb failed and Rule 5(2)(b) relief could not be granted in full.

p. 4

Legal principles established

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  • In dealing with a Rule 5(2)(b) application the Court of Appeal exercises original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion
  • An arguable ground of appeal need not succeed; a single arguable ground suffices to meet the threshold
  • Both limbs of Rule 5(2)(b) - arguability and nugatory aspect - must be satisfied before stay is granted

Court orders

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  1. 1.Dismissed the application in respect of stay of execution of the order granting a life interest of Kisumu/Municipality 5/75 and Kisumu/Muhoroni/1098 to the three surviving widows and the incomes accruing therefrom in equal shares
  2. 2.Granted an order staying the delivery by Thomas Ochieng Apopa of title documents in his possession relating to the estate of the deceased and the list of unadministered assets, pending the hearing and determination of the appeal, on condition that he does not sell, charge or in any way dispose of the properties and assets
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisumu
H.C. Succession Cause No. 370 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010

Relief refused

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Stay of execution of the order granting the surviving widows a life interest in Kisumu/Municipality 5/75 and Kisumu/Muhoroni/1098 and their incomes

The applicants failed to demonstrate that the appeal would be rendered nugatory if the stay was not granted, as the orders in the impugned ruling were in favour of the surviving widows and would cause no prejudice to the applicants even if the appeal succeeded

p. 4

Costs

This being a family matter, there shall be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That in dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge's discretion to this Court.
p. 4Nature of Rule 5(2)(b) jurisdiction
an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous; a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable.
p. 4Arguability threshold
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
p. 4Nugatory test as stated in Reliance Bank v Norlake Investments
Rule 5(2)(b) of this Court's Rules requires that both limbs be satisfied.
p. 4Cumulative Rule 5(2)(b) conditions
i) We dismiss the application as it relates to stay of execution of the order granting a life interest of KISUMU/MUNICIPALITY 5/75 and KISUMU/MUHORONI/1098 to the 3 surviving widows of the deceased
p. 4Final orders - dismissal of stay of life-interest orders

Issues in the judgment

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minor

The judgment inconsistently spells the name of one of the widows, variously rendered 'DOMTILA ADUDA APOPA', 'DOMTILLA ADUDA' and 'DOMITILLA ADUDA'

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, "In Re Estate of Leo Apopa (Deceased) [2018] KECA 224 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 72 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/224/eng@2018-10-18

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