Thuo & 2 others (Acting through their Mother & Guardian - SWT) v Ngeta & another (Civil Application E110 of 2024) [2025] KECA 1291 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a succession case, ruling that probate can be revoked later if a will is ultimately proven forged.
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
- 2.Whether the appeal, if successful, would be rendered nugatory if the sought stay of proceedings is not granted
Key legal issues
#Whether the intended appeal is arguable
Yes; an arguable appeal is not one that must necessarily succeed, and the court was not prepared to say the appeal was frivolous
The intended appeal was interlocutory, challenging the trial judge's exercise of discretion in declining to subject the will and its three counterparts to forensic scrutiny. On the memorandum of appeal grounds, and given the low threshold that an arguable appeal need not succeed, the court found the appeal not frivolous.
Whether the appeal would be rendered nugatory if stay is not granted
No; a grant of probate is reversible and any resulting loss is compensable, so the nugatory test failed
Probate is not irreversible: it can be revoked under section 76 of the Succession Act and distributed assets recovered from beneficiaries. Estate assets are identifiable and traceable, so the applicants could be compensated. The ruling was interlocutory and did not preclude later challenges, while a stay would harm legitimate beneficiaries and impede access to justice.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability test and the nugatory test to obtain a stay of execution, injunction or stay of proceedings
- A grant of probate is not irreversible; probate granted can be revoked under section 76 of the Succession Act and estate assets, if distributed, can be recovered through appropriate legal proceedings
- A stay of proceedings is a drastic order to be deployed in extremely rare cases and where exceptional circumstances warrant such orders, as it may impede the right to access to justice
Court orders
#- 1.Application dated 29th November, 2024 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nakuru High Court Succession Cause No. E76 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of further proceedings in Nakuru H.C Succession Cause No. E076 of 2022 pending determination of the appeal
Applicants failed both the arguability and nugatory tests under rule 5(2)(b)
Costs
The application dated 29th November, 2024 is dismissed with costs to the respondents.
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 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, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
First, a grant of probate is not irreversible. Should the intended appeal succeed and the Court of Appeal find that the will should have been subjected to forensic examination, any probate granted can be revoked under section 76 of the Succession Act.
a stay of proceedings is a drastic order to be deployed in extremely rare cases and where exceptional circumstances warrant such orders, as it may impede the right to access to justice
Accordingly, having failed to satisfy the twin principles to qualify for an order of stay of the proceedings, the application dated 29th November, 2024 is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuo & 2 others (Acting through their Mother & Guardian - SWT) v Ngeta & another (Civil Application E110 of 2024) [2025] KECA 1291 (KLR)", Case Analysis (2025). Civil Appeal No. E118 of 2024 (Application dated 29th November, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1291/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.