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Court of AppealDismissedCivil Application E408 of 2021

Ng’ang’a v Mburu & 2 others

Court of Appeal
4 November 2022
1,660 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a succession ruling because the applicant, not being a beneficiary, would lose nothing even if her appeal later succeeded.

What this practically means

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Executive summary

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Catherine Njeri Ng’ang’a, appointed a Limited Grant Ad Litem in Succession Cause No. 1130 of 2018 to continue defending Carmelina Mburu’s interest in ELC Case No. 1180 of 2014, sought stay under Rule 5(2)(b) of the Court of Appeal Rules of the High Court order (Muchelule, J, 25 October 2021) revoking that grant, and of the ELC proceedings, pending her intended appeal. The respondents, beneficiaries and relatives of the deceased estates, opposed, contending the grant was obtained through defective proceedings and material non-disclosure, that the power of attorney did not survive Carmelina’s death, and that Catherine lacked locus standi as neither relative nor beneficiary. Applying the settled twin-limb test for Rule 5(2)(b) applications, the Court of Appeal (Okwengu, Sichale and Ole Kantai, JJA) found the appeal arguable on the single ground whether the learned Judge exercised his discretion and applied the law properly in revoking the Limited Grant. However, on the nugatory limb, the Court held that Catherine, being admittedly not a beneficiary of Carmelina’s estate and participating in the ELC suit only to protect the estate’s interest, stood to lose nothing by being unable to participate, and had demonstrated no beneficial right jeopardized by denial of the orders. Citing Republic v Kenya Anti-Corruption Commission, the Court emphasized that both limbs must be satisfied. The motion was dismissed with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether Catherine’s intended appeal as reflected in the memorandum of appeal is arguable
  2. 2.Whether absent the orders sought by Catherine, the appeal shall be rendered nugatory in the event it succeeds

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was arguable on the single ground whether the Judge exercised his discretion and applied the law properly in revoking the Limited Grant.

Reasoning

The court restated that an arguable appeal is one not frivolous, raising a bona fide issue deserving determination; a single bona fide issue suffices. Catherine listed ten grounds, and the challenge to the Judge's exercise of discretion in revoking the grant was sufficient to engage the Court's mind on appeal.

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Nugatory aspect

Holding

The nugatory limb was not satisfied because Catherine, not being a beneficiary of Carmelina's estate, would suffer no loss if the orders were denied.

Reasoning

The impugned ruling revoked the limited grant enabling Catherine to participate in the ELC suit. It was common ground she is not a beneficiary of the estate; she participates only to protect the estate's interest. As a party not interested in the estate, she stands to lose nothing, and no beneficial right was shown to be jeopardized.

p. 3

Legal principles established

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  • Under Rule 5(2)(b), an applicant must satisfy both the arguability and nugatory limbs; satisfying only one limb is insufficient.
  • An arguable appeal need not be one that will necessarily succeed; a single bona fide issue suffices.
  • The Rule 5(2)(b) discretion is unfettered but must be exercised judicially.

Court orders

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  1. 1.The applicant’s motion fails and is dismissed with no orders as to costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 1130 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of the High Court order of 25th October 2021 revoking the Limited Grant

The nugatory limb of the twin principle was not satisfied; Catherine is not a beneficiary and stands to lose nothing

p. 3

Stay of proceedings in ELC Case No. 1180 of 2014 pending the application and appeal

Both limbs of Rule 5(2)(b) must be demonstrated; only the arguability limb was met

p. 3

Costs

No orders as to costs

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.

Under Rule 5(2)(b) the discretion of the Court is unfettered but must be exercised judicially.
p. 3Nature of Rule 5(2)(b) discretion
an arguable appeal is one that is not frivolous but raises a bona fide issue deserving determination by a Court and a single bona fide issue would suffice
p. 3Arguability threshold
In order that the applicant may succeed, he must demonstrate both limbs and demonstrating only one limb would not avail him the order sought if he failed to demonstrate the other limb
p. 3Both limbs of Rule 5(2)(b) must be satisfied
Consequently, the applicant’s motion fails and is dismissed with no orders to costs.
p. 3Final orders / disposition

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, "Ng’ang’a v Mburu & 2 others", Case Analysis (2022). Civil Application E408 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1225/eng@2022-11-04

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