Devna Om Parkash Pandit & 1 other v Rajib Bali
The bottom line
#The Court of Appeal dismissed two nieces' bid to pause an elderly relative's guardianship ruling, finding the appeal arguable but refusing relief because it would achieve nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable and not frivolous, since the applicants raised issues such as whether the High Court failed to consider evidence of the respondent's unsuitability and the best interests of Indra
Counsel argued the High Court failed to evaluate the pleadings and evidence, ignored evidence of the respondent's unsuitability, granted unpleaded orders and erred in dismissing the applicants' petition. Guided by settled authority that an arguable appeal need not succeed but must merit full argument, the Court found the grounds raised were not frivolous and were deserving of the Court's consideration at the hearing of the intended appeal.
Whether the intended appeal would be rendered nugatory if stay and injunction are not granted
The applicants failed to demonstrate nugatory consequences; the application fails on this limb
Indra had already travelled to the US under the respondent's care following the judgment. The Court held it could not, at that stage, sever the guardianship order from the order granting control and management of her estate, since the respondent needed access to her resources to care for her. Given Indra's presence in the US, granting the orders would be futile and the Court does not make orders in vain.
Legal principles established
#- To succeed on an application under Rule 5(2)(b) for stay or injunction pending appeal, an applicant must demonstrate both that the intended appeal is arguable and that, if the application is declined and the appeal succeeds, the success would be rendered nugatory
- An arguable appeal is not one that must necessarily succeed, but one which ought to be argued fully before the Court or one that is deserving of the Court's consideration
- The Court should not make orders in vain; where events have overtaken the relief sought and it would be futile to grant it, the Court will decline
Court orders
#- 1.The applicants' application dated 16th April 2019 and presented to the Court on 18th April 2019 is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya, Family Division at Nairobi
- High Court Petition No. 29 of 2017 (consolidated with High Court Petition No. 63 of 2017)
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Devna Om Parkash Pandit & 1 other v Rajib Bali", Case Analysis (2019). Civil Application No. 124 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/49/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.