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Court of AppealDismissedCivil Application No. NAI 338 of 2018· [2021] KECA 617 (KLR)

Susan Mukonyo Kamui v Jennifer Wairimu Njogu [2021] KECA 617 (KLR)

Court of Appeal
7 May 2021
William OukoW. OukoWKW. KaranjaASAsike-Makhandia
1,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause a High Court succession ruling because preservation orders meant the appeal would lose nothing by waiting.

What this practically means

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Executive summary

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This was a single-judge application, determined by a bench of the Court of Appeal at Nairobi (Ouko, P, Karanja and Asike-Makhandia, JJ.A.), seeking stay of execution of rulings of the High Court at Machakos (Nyamweya, J.) in Machakos Succession Cause No. 58 of 2001, delivered on 16th October 2017 and 20th September 2018. The dispute concerned the estate of Kamui Mavuti, who was survived by the applicant, holder of a grant of letters of administration intestate, and the respondent, who claimed to be a second wife under Kamba customary law. The High Court revoked the applicant's grant, declared her dealings with estate property null and void, appointed both women joint administrators, and later ordered that rental income of Kshs 94,400 per month be deposited in a joint account or in court, with withdrawals requiring joint consent. The applicant sought stay pending an intended appeal under Rules 5(2)(b) and 43 of the Court of Appeal Rules. The Court first expressed doubt about service of the hearing notice, noting the affidavit of service was sworn only a day before the hearing and appeared to be an afterthought; it reiterated that the right to be heard is fundamental and that where service is in doubt the court is slow to make adverse orders. It nonetheless held that, even assuming an arguable appeal, the applicant failed to demonstrate the nugatory aspect, since the impugned orders preserve the estate pending the appeal. The application was dismissed with costs in the intended appeal.

Key legal issues

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01

Service of hearing notices

Holding

Service is a critical component of the legal process; where service is doubtful, adverse orders should not be made against the allegedly unserved party

Reasoning

The court noted that the affidavit of service was sworn only a day before the hearing, creating the impression of an afterthought. Relying on its earlier decision in James Kanyita Nderitu, the court held that the right to be heard before an adverse decision is fundamental and permeates the entire justice system, citing Onyango Oloo and Sangram Singh.

p. 2
02

Rule 5(2)(b) stay threshold - nugatory aspect

Holding

Even assuming arguability, the application failed because the applicant did not demonstrate that the appeal would be rendered nugatory; the orders complained of preserve the estate

Reasoning

The learned Judge had ordered rents to be deposited into a joint account or in court, which together with the other orders ensures preservation of the deceased's estate pending the hearing and determination of the intended appeal. Accordingly, nothing would be rendered nugatory if the appeal ultimately succeeded, and stay was refused.

p. 2

Legal principles established

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  • Where there is doubt whether an affected party was served, the court will be slow to make orders against that party
  • An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory if stay is not granted

Court orders

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  1. 1.The application dated 12th November 2018 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent in the intended appeal
On appeal from
High Court of Kenya at Machakos
HC Succession Cause No. 58 of 2001
Jurisdiction invoked
Rules 5(2)(b) and 43 of the Court of Appeal Rules

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, "Susan Mukonyo Kamui v Jennifer Wairimu Njogu [2021] KECA 617 (KLR)", Case Analysis (2021). Civil Application No. NAI 338 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/617/eng@2021-05-07

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