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Court of AppealAllowedCivil Application No. 110 of 2018 & 53 of 2019

Peter Anyang Nyong’o & another v Kenneth Odhiambo Okuthe & another [2019] KECA 331 (KLR)

Court of Appeal
3 October 2019
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
2,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused a succession ruling and contempt orders against the Nyong'o family, confirming that obeying court orders matters even while appealing.

What this practically means

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Executive summary

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This is a consolidated ruling of the Court of Appeal at Kisumu on two Rule 5(2)(b) motions by Prof. Peter Anyang Nyong'o and Nyagoy Nyong'o Bloch, children of the late Hesbon Shimei Nyong'o, seeking stay of execution of two High Court decisions in Kisumu Succession Cause No. 815 of 2010. The first decision, delivered on 11th October 2018 by Cherere, J., revoked the letters of administration issued to the applicants, appointed the 1st respondent as co-administrator, and directed the applicants to render accounts of the estate. The second, delivered on 23rd May 2019, convicted the applicants of contempt for non-compliance with the earlier orders. The court restated the settled two-limb test for stay pending appeal: an arguable appeal and the nugatory aspect, both of which must be satisfied, with one arguable ground sufficing. It found arguable grounds in both draft memoranda, including that the judge revoked letters of administration when only revocation of confirmation of the grant had been sought, and that section 66 of the Law of Succession Act on priority of administrators was ignored. On the nugatory limb, the court held the first motion was not spent because execution, notably the accounts order, remained incomplete, and found the risk to the applicants' liberty from the contempt orders could not be taken lightly. The court granted both motions and stayed execution of both sets of orders pending the hearing of the appeals. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the applicants have an arguable appeal in each intended appeal
  2. 2.Whether the intended appeals would be rendered nugatory unless stay of execution is granted
  3. 3.Whether the first motion filed on 4th December 2018 is spent in light of the attempted execution

Key legal issues

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01

Test for stay of execution pending appeal under Rule 5(2)(b)

Holding

The applicant must demonstrate an arguable appeal that is not frivolous and that the appeal will be rendered nugatory absent stay; both must be satisfied and one arguable ground suffices.

Reasoning

The court restated the settled principles for Rule 5(2)(b) applications, citing prior authority. It examined the draft memoranda of appeal in both intended appeals, found at least some grounds arguable in each, and separately assessed the nugatory aspect, finding a live risk to the applicants' liberty from contempt proceedings and incomplete execution of the impugned orders.

p. 2
02

Whether the first stay motion was spent after partial execution and contempt conviction

Holding

The motion was not spent because execution of the order of 11th October 2018, particularly the order to render accounts, had not been completed.

Reasoning

The court noted the applicants had paid fines totalling KShs 900,000 to avoid jail but had not fully complied with the order of 11th October 2018; execution was incomplete and had only been halted by this Court's order of 30th July 2019. Accordingly, there remained orders capable of being stayed.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory requirements; it is enough that the applicant has at least one arguable issue.
  • A notice of appeal and a motion for stay of execution do not operate as a stay and do not justify willful defiance of a court order.

Court orders

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  1. 1.Stay of execution of the orders of 11th October 2018 issued in HC (Kisumu) Succession Cause No. 815 of 2010 pending the hearing of the appeal
  2. 2.Stay of execution of the orders of 23rd May 2019 (contempt orders) issued in HC (Kisumu) Succession Cause No. 815 of 2010 pending the hearing of the appeal
  3. 3.Grant of the motions filed on 4th December 2018 in Civil Application No. 110 of 2018 and 28th May 2019 in Civil Application No. 53 of 2019

The bench

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

EG
majority
HO
majority
JM
majority
On appeal from
High Court of Kenya at Kisumu
Succession Cause No. 815 of 2010
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules
Consolidated with
Civil Application No. 53 of 2019

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.

Accordingly, we grant the motions filed on 4th December 2018 in Civil Application No. 110 of 2018 and 28 th May 2019 in Civil Application No.53 of 2019, and issue orders of stay of execution pending the hearing of the appeals.
p. 3Final orders - stay of execution granted
It is not for us at this stage to consider the merits of these grounds, nor is it imperative that these grounds must succeed. It suffices that the grounds are arguable, and we believe they are.
p. 2Standard on arguability at stay stage
It is evident that the risk to the applicant’s liberty is one that cannot be taken lightly, and that this would render the intended appeal nugatory as the orders sought to be appealed against would have been spent.
p. 3Nugatory aspect - risk to liberty

Issues in the judgment

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minor

The judgment records the High Court contempt ruling as dated 23rd May 2018 while stating it must have been delivered on 23rd May 2019; the internal chronology confirms 2019.

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, "Peter Anyang Nyong’o & another v Kenneth Odhiambo Okuthe & another [2019] KECA 331 (KLR)", Case Analysis (2019). Civil Application No. 110 of 2018 & 53 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/331/eng@2019-10-03

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