Amina Shiraz Yakub v David Baburam Jagatram [2019] KECA 862 (KLR)
The bottom line
#The Court of Appeal refused to pause succession proceedings over a Ksh. 60 million estate because the widow could not prove her appeal would be wasted without a stay.
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 under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the intended appeal would be rendered nugatory if the stay orders sought are not granted
- 3.Whether the failure to annex the impugned order to the supporting affidavit rendered the application fatally defective
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable; two arguable points stood out - the judge's consideration of Section 35 of the Succession Act and the justification for a third administrator.
The court perused the draft memorandum of appeal and noted that only one arguable point need be demonstrated. It identified two: whether the judge erred in her consideration of Section 35 of the Succession Act, and whether there was justification for appointing a third administrator. The first limb of the Rule 5(2)(b) test was therefore satisfied.
Whether the intended appeal would be rendered nugatory if stay is not granted
The applicant failed to discharge the burden of demonstrating nugatory aspect; administration expenses must be charged to the Estate regardless of who the administrator is.
The applicant alleged that appointment of a third administrator would render the appeal nugatory because of irrecoverable costs. The court held that administration expenses must be charged to the estate notwithstanding the identity of the administrator, so the appeal could not be rendered nugatory. The applicant also failed to show the judge erred in exercising her discretion, applying Mbogoh & Anor vs Shah. The second limb of the test was not satisfied.
The slayer or forfeiture rule in succession law
The slayer and forfeiture rule is incorporated in Sections 96(1) and (2) of the Succession Act; a murderer cannot inherit from or benefit from the estate of the person they killed, and conviction of murder is sufficient evidence.
The court canvassed comparative authorities including In the Estate of Crippen, Cleaver vs Mutual Reserve Fund Life Association, Mata Badal Singh and Re Pedersen, and held the rule is embodied in Sections 96(1) and (2) of the Succession Act, Cap 160. While the applicant faces a murder charge, the presumption of innocence under Article 50(2) still applies until she is adjudged otherwise.
Whether failure to annex the impugned order is fatal
No; the court declined the respondent's technical objection, holding that the era of technical justice is over.
The respondent objected that the order sought to be stayed had not been attached to the supporting affidavit, rendering the application fatally defective. The court rejected the objection, observing that failure to attach an order or decree appealed against no longer renders an application or appeal fatal.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory absent stay; the burden of proving the nugatory aspect rests on the applicant.
- Demonstration of even one arguable point suffices to establish the first limb of the Rule 5(2)(b) test.
- The Court of Appeal is no longer a technical court; failure to attach the order or decree appealed against does not render an application or appeal fatal.
- The Court of Appeal will not interfere with the exercise of discretion by a trial court unless the decision is clearly wrong.
Court orders
#- 1.The Notice of Motion dated 18th October 2018 is dismissed
- 2.The applicant to pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC Succession Cause No. 325 of 2016
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Stay of the ruling and orders issued on 4th October 2018 pending the hearing and determination of the intended appeal
The applicant failed to satisfy the second limb of the Rule 5(2)(b) test - that the appeal would be rendered nugatory if stay is not granted
Stay of further proceedings in the High Court Succession Cause No. 325 of 2016 pending the hearing and determination of the intended appeal
Same failure to demonstrate nugatory aspect; the applicant also failed to show the trial judge erred in the exercise of her discretion
Costs
The Notice of Motion dated 18th October 2018 has no merit and is hereby dismissed with costs.
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.
In the final analysis, we arrive at the conclusion the Notice of Motion dated 18th October 2018 has no merit and is hereby dismissed with costs.
Accordingly, the applicant has not satisfied the second limb for grant of a stay order under Rule 5(2) (b) of the Rules of this Court.
The legal and evidentiary burden to prove the nugatory aspects of the intended appeal rests on the applicant.
It is trite that demonstration of the existence of even one arguable point will suffice in favour of the applicant.
days are gone when this Court was a technical Court whereby failure to attach an order or decree appealed against would render an application or appeal fatal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bundi & 4 others v Chelanga & 3 others (Sued as the Personal Representatives and Beneficiaries of the Estate of Ishmael Juma Chelanga-Deceased) (Environment and Land Case 52 of 2019) [2026] KEELC 512 (KLR)[2026] KEELC 512 (KLR)2 Feb 2026applied
- Kubai v Kubai (Sued as the Administratrix and or Legal Representative of the Estate of the Late Kubai Baimpwi- (Deceased)) (Enviromental and Land Originating Summons E004 of 2023) [2024] KEELC 6339 (KLR)[2024] KEELC 6339 (KLR)25 Sept 2024applied
Cite this brief
#Cite this brief
Caselaw, "Amina Shiraz Yakub v David Baburam Jagatram [2019] KECA 862 (KLR)", Case Analysis (2019). Civil Application No. NAI. 294 of 2018 (UR 235/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/862/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.