Court of Appeal rejects bid to halt succession case over disputed Nairobi properties

Court of Appeal rejects bid to halt succession case over disputed Nairobi properties
Court of Appeal rejects bid to halt succession case over disputed Nairobi properties - The Court of Appeal has dismissed a bid to halt a succession case over disputed Nairobi properties, allowing proceedings to continue. (Photo: X/The Judiciary Kenya)
The Court of Appeal has dismissed a bid to halt a succession case over disputed Nairobi properties, allowing proceedings to continue. (Photo: X/The Judiciary Kenya)

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The judges ruled that the companies failed to meet the legal threshold for a stay, allowing the succession proceedings and rent collection from the disputed properties to continue.

The Court of Appeal has dismissed an application by Kamukunji Business Centre Limited and Pangani Animal Feeds Limited seeking to halt the execution of High Court orders and suspend proceedings in a long-running succession dispute over properties the companies claim to own.
In a ruling delivered by Justices Kinoti Minoti, Chacha Mwita and Byram Ongaya, the appellate court found that the two companies had failed to meet the legal threshold for the grant of a stay of execution and stay of proceedings pending the hearing of their intended appeal.
The companies moved to the Court of Appeal after the High Court dismissed their application to be enjoined as interested parties in Succession Cause No. 651 of 2012. They argued that two properties, L.R. Nos. 209/9036 and 1434 belong to them as limited liability companies and should not be treated as part of the estate of the late Samuel Muiruri Wainaina.

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They also challenged a High Court order directing estate agents Lloyd Masika Limited to continue collecting rent from the two properties on behalf of the deceased's estate.
The applicants argued that unless the orders were stayed, rental income could be distributed to beneficiaries before ownership of the properties was conclusively determined, rendering their intended appeal meaningless.
However, the Court of Appeal ruled that the High Court had merely dismissed the companies' application, resulting in what the law describes as a "negative order", which cannot be stayed.

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"The order made by the High Court dismissing the applicants' application being a negative order, is incapable of being executed and this Court cannot therefore stay its execution because there is nothing to stay," the judges ruled.
The court reiterated that only positive orders requiring a party to perform or refrain from a specific act are capable of being stayed under Rule 5(2)(b) of the Court of Appeal Rules.
Although the judges agreed that the intended appeal raised arguable issues, including whether the companies should have been allowed to participate in the succession proceedings and whether the disputed properties form part of the deceased's estate, they found that the applicants had failed to demonstrate that the appeal would be rendered nugatory if the case continued.
The bench further noted that the order authorising Lloyd Masika Limited to collect rent has been in force for more than eight years. It also found that the applicants had not shown that there were active High Court proceedings that warranted suspension.
"The applicants have only satisfied the limb for arguability but have failed to establish the second limb that the appeal will be rendered nugatory," the court held.
The judges consequently dismissed the application dated September 24, 2021, with no order as to costs, clearing the way for the succession proceedings to continue.

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