Kariuki v Kariuki (Civil Application 96 of 2019) [2021] KECA 205 (KLR)
The bottom line
#The Court of Appeal refused to freeze a High Court ruling because the applicant showed the appeal was arguable but failed to prove it would be pointless 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 an application erroneously brought under the wrong provisions of law should be determined on its merits despite the defective citation
- 2.Whether the intended appeal is arguable under the first limb of the Rule 5(2)(b) test
- 3.Whether the intended appeal, if successful, would be rendered nugatory if a stay is not granted under the second limb of the Rule 5(2)(b) test
- 4.Whether both twin principles for relief under Rule 5(2)(b) have been satisfied so as to warrant a stay of execution of the High Court ruling
Key legal issues
#Effect of citing wrong provisions in an application
The application was erroneously brought under Order 42 Rules 4 and 6 and Order 51 Rule 1 of the Civil Procedure Rules, but the Court substituted Rule 5(2)(b) and Rule 1(2) as the proper access provisions and determined the application on its merits rather than striking it out.
The Court held that the cited Civil Procedure Rules provisions do not govern its mandate in such an application; the correct provision is Rule 5(2)(b). Relying on its inherent power under Rule 1(2) of the Court of Appeal Rules, as crystallised in Equity Bank Ltd v West Link Mbo Ltd and Board of Governors, Moi High School Kabarak v Malcolm Bell, the Court cured the defect so as not to send the applicant away from the seat of justice.
Arguability of the intended appeal
The intended appeal was arguable, particularly on whether the suit properties formed part of the estate of the deceased, satisfying the first limb of the Rule 5(2)(b) test.
Applying Trust Bank Limited v Investech Bank Limited and Stanley Kang'ethe Kinyanjui v Tony Ketter, the Court asked whether a single bona fide arguable ground had been raised. It found that whether the suit properties formed part of the deceased's estate was arguable, while stressing that an arguable appeal need not succeed, and refrained from definitive findings lest it embarrass the bench seized of the main appeal.
Nugatory aspect and failure to satisfy both limbs
The intended appeal would not be rendered nugatory because the monies collected from the suit properties would be deposited into a joint account of the parties' advocates and remain available to the applicant if her appeal succeeded; having satisfied only one limb, the application failed.
Drawing on the Kang'ethe Kinyanjui exposition of 'nugatory' as encompassing worthless, futile, invalid or trifling outcomes, the Court weighed the conflicting claims of both parties. Because the High Court order merely required rental monies to be deposited into a joint advocates' account, the money would be recoverable on success, so no irreversible prejudice was shown and the twin limbs were not both met.
Legal principles established
#- Failure to cite the correct provision of law for accessing relief will not disentitle an applicant to a determination of the application on its merits, as the Court may invoke its inherent power under Rule 1(2) to cure such a defect
- An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory limbs; success on only one limb is insufficient for relief
- In determining whether an appeal will be rendered nugatory the Court considers the conflicting claims of both parties and each case on its merits, including whether what is sought to be stayed is reversible or compensable by damages
Court orders
#- 1.The application dated 27th March, 2019 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Succession Cause (ruling delivered 14th March, 2019 by Ali-Aroni, J.)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, with the Court invoking its inherent power under Rule 1(2) of the Court of Appeal Rules to cure the defective citation of provisions
Relief refused
#Stay of execution of the High Court ruling delivered on 14th March, 2019 pending the hearing and determination of the intended appeal
The applicant satisfied only the arguability limb and failed to establish that the intended appeal would be rendered nugatory, since the monies collected from the suit properties would be deposited into a joint account of the parties' advocates and remain available to her if the appeal succeeded
Costs in the cause as sought by the applicant
The application was dismissed with costs to the respondent instead
Costs
Application dismissed with costs to the respondent
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.
The upshot is that the application dated 27th March, 2019 is without merit and the same is hereby dismissed with costs to the respondent.
It is however, our view that failure to cite the correct provision of law for accessing the relief sought will not disentitle the applicant determination of the application on its merits and send her away empty handed from the seat of justice.
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
The term "nugatory" has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.
Herein the applicant has succeeded only on one as she has failed to establish the nugatory aspect. She has therefore failed to establish the twin limbs necessary for granting relief in an application under Rule 5(2)(b) of the Court of Appeal Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ashmi Investment Limited v Riakina Limited & another (Civil Appeal (Application) 384 of 2019) [2023] KECA 410 (KLR)[2023] KECA 410 (KLR)14 Apr 2023followed
Cite this brief
#Cite this brief
Caselaw, "Kariuki v Kariuki (Civil Application 96 of 2019) [2021] KECA 205 (KLR)", Case Analysis (2021). Notice of motion dated 27th March, 2019 (Civil Appeal - application under Rule 5(2)(b) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/205/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.