[2010] KEHC 3287 (KLR)
The court dismissed the application primarily on two grounds: first, the Memorandum of Appeal and the Notice of Motion were filed under different names (Agnes Muiruri Kamande and Anne Muiruri Kamande), with no explanation or evidence that the person filing was an advocate or authorized representative. This...
Source-derived case information.
- Citation
- [2010] KEHC 3287 (KLR)
- Parties
- Appellant: Agnes Muiruri Kamande; Respondent: Cecilia Wanjiru Kamande
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Succession Proceedings, Joinder of Parties, Variation of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Muiruri Kamande
Appellant
Cecilia Wanjiru Kamande
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the application for stay of orders pending appeal is competent given the discrepancy in the applicant's name.
- 2 Whether the court can grant orders affecting a non-party to the proceedings.
- 3 Whether the applicant has established sufficient grounds for stay of execution pending appeal.
Ratio Decidendi
The court dismissed the application primarily on two grounds: first, the Memorandum of Appeal and the Notice of Motion were filed under different names (Agnes Muiruri Kamande and Anne Muiruri Kamande), with no explanation or evidence that the person filing was an advocate or authorized representative. This discrepancy rendered the application incompetent. Second, the orders sought would directly affect a third party, Simon Sammy Karanja, who had purchased the motor vehicle in question but was neither a party to the proceedings nor served with the application. The court held that it cannot issue orders in vain or grant reliefs that affect non-parties, as such orders would be unenforceable...
Court Disposition
application dismissed
Orders
- The application dated 4th June, 2008 is dismissed.
- Costs will await the decision of the appeal.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 12 of 2008
AGNES MUIRURI KAMANDE…………….…………………. APPELLANT
V E R S U S
CICILIA WANJIRU……………...……………………..…….. RESPONDENT
R U L I N G
Before me is an application by way of Notice of Motion dated 4th June, 2008 filed by AGNES MUIRURI KAMANDE described as PETITIONER/APPLICANT. The application was filed with an affidavit sworn on the same date by the applicant.
The application was purported to be brought under section 97 of the Law of Succession Act (Cap. 160) and Rule 63 (1), and 73 of the Probate and Administration Rules, as well as Order XLI and XLIV of the Civil Procedure Rules (Cap. 21). The application seeks 6 orders, some of which have been spent as follows-
1. (spent)
2. (spent)
3. THAT there be a stay of the order made on 11th May, 2007 in PMCC Murang’a Succession Cause No. 244/03 pending hearing and determination of this appeal.
4. THAT the respondent either by herself, servants or anybody howsoever claiming through her from selling, alienating, wasting, using, vandalizing, damaging or in any other manner so interfering with motor vehicle registration number KXG 092 Mitsubishi Canter Lorry until hearing and determination of the application and/or appeal herein.
5. THAT the motor vehicle KXG 092 be detained at Maragua Police Station and the OCS Muragua Police Station do enforce the said detention.
6. THAT costs be in the cause.
There are four grounds on the face of the application. The affidavit filed with the application gives the genesis and background to this application.
On 30th September, 2008, M/s J.W. Madahana & Company advocate entered appearance for the applicant. On 12th November, 2008 M/S Kimwere Josphat & Company came on record for the respondents.
A replying affidavit sworn by CECILIA WANJIRU KAMANDE was filed on 9th December, 2008. It was deposed inter alia, that the applicant was not entitled to the prayers sought. The applicant filed a supplementary affidavit sworn by herself on 15th December, 2008.
On the hearing date, both Mrs. Madahana for the applicant, and Mr. Kimwere for the objector addressed me.
Having considered the application, documents filed and the submissions of counsel for the parties, I will not grant the orders sought. The first reason is that the Memorandum of Appeal is in the name of AGNES MUIRURI KAMANDE as appellant, but it was signed by ANNE MUIRURI KAMANDE. The Notice of Motion before me is filed by ANNE MUIRURI KAMANDE, though the applicant is named as AGNES MUIRURI KAMANDE. I have not been told that the one who filed the application was an advocate representing the applicant. Nor have I been given any explanation regarding variance of names.
The second reason why I will not allow the application is that the applicant herself, in her supplementary affidavit, annexed a document of sale between CECILIA WANJIRU KAMANDE and SIMON SAMMY KARANJA in respect of motor vehicle Registration No. KXG 092 Nissan Canter dated 7th February, 2003. That person SIMON SAMMY KARANJA is neither a party to this application, nor was he served with the application
This court cannot give orders in vain, no issue orders that will directly affect persons who are not parties. I find it impossible to give orders which might not be enforced. I therefore will not grant the orders pending appeal that have been sought.
In sum, I find that the application lacks merit. I dismiss the same. Costs will await the decision of the appeal.
It is so ordered.
Dated and delivered at Nairobi this 10th day of March, 2010.
GEORGE DULU
JUDGE.
In the presence of-
Mr. Kariuki holding brief for Ms. Madahana for applicant.
David Mutisya – court clerk.