[2005] KEHC 1774 (KLR)
The court found that although the application was improperly drafted under the Civil Procedure Rules instead of the Law of Succession Act, Rule 63 of the Probate & Administration Rules makes Order XLIX of the Civil Procedure Rules applicable to succession matters. The applicant provided a reasonable explanation for...
Source-derived case information.
- Citation
- [2005] KEHC 1774 (KLR)
- Parties
- Applicant: Beatrice Wangithi Maina; Respondent: Peris Wanjiru Maina
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 25 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- leave to appeal out of time granted; stay of execution denied; costs to respondent
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Probate and Administration, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wangithi Maina
Applicant
Peris Wanjiru Maina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment in Succession Cause No. 10 of 1994.
- 2 Whether the application is properly grounded under the Civil Procedure Rules or should have been brought under the Law of Succession Act.
- 3 Whether leave should operate as a stay of execution despite execution having already taken place.
Ratio Decidendi
The court found that although the application was improperly drafted under the Civil Procedure Rules instead of the Law of Succession Act, Rule 63 of the Probate & Administration Rules makes Order XLIX of the Civil Procedure Rules applicable to succession matters. The applicant provided a reasonable explanation for the delay, attributing it to her former advocate's inaction. The court determined that the applicant has an arguable appeal and should be afforded an opportunity to be heard. However, since execution had already taken place and no provision was cited to support a stay, the prayer for stay of execution was denied. Leave to appeal out of time was granted, with costs awarded to...
Court Disposition
leave to appeal out of time granted; stay of execution denied; costs to respondent
Orders
- Leave is granted to the applicant to file an appeal against the judgment of the R.M. in Karatina in Succession Case No. 10 of 1994 made on 11th December 2000 within 21 days from the date hereof.
- The applicant shall pay costs of this application to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Misc Appli 25 of 2004
IN THE MATTER OF THE ESTATE OF DANSON MAINA CHURI – DECEASED AND BEATRICE WANGITHI MAINA …………………………………….. APPLICANT VERSUS PERIS WANJIRU MAINA …………………………………………. RESPONDENT R U L I N G
Beatrice Wangithi Maina, has come to this court under section 3A of the Civil Procedure Rules seeking to be granted leave to file an appeal out of time and that the draft memo of appeal be deemed duly filed and that leave do operate as a stay of execution in Karatina RMCC No. 10 of 1994.
It is the applicant’s contention that her appeal has overwhelming chances of success and that the failure to file the appeal in time was occasioned by her former advocate who failed to diligently pursue the matter.
The Respondent Peris Wanjiru Maina objects to the application contending that the same is defective as the same ought to have been brought under the provisions of the Law of succession Act and not the Civil Procedure Act and Rules. She further contends that the applicant has not satisfactorily explained the delay of 5 years, and that the application is brought too late in the day as the execution has already taken place.
It is evident that the suit which is the subject of the intended appeal relates to land to which the applicant is threatened with eviction. The applicant has explained that she relied on her former advocate who failed to take action as required. The applicant appears to be unfortunate in her choice of counsels. Her current advocates have improperly drafted her application seeking leave to appeal against a ruling in R.M.C.C. No. 10 of 1994 when it is evident from the draft memo of appeal that the suit in respect of which an appeal is intended to be lodged is R.M. Succession Cause No. 10 of 1994. That defect has however not caused any prejudice to the Respondent.
Under rule 63 of the Probate & Administration Rule, Order XLIX of the Civil Procedure Rules is applicable to succession matters. The application is therefore properly grounded under Order XLIX rule 5 of the Civil Procedure Rules.
I have considered the draft memo of appeal and do find that the applicant has an arguable appeal. It is only fair and just that she be given an opportunity to be heard on the same.
The applicant sought to have leave granted by this court to operate as a stay of execution. No particular provision was quoted in support of that prayer.
In any case the Respondent’s contention that the execution has already taken place was not disputed. I will therefore not grant that prayer. The upshot of the above is that I do grant leave to the applicant to file an appeal against the judgment of the R.M. in Karatina in Succession Case No. 10 of 1994 made on 11th December 2000 within 21 days from the date hereof.
The applicant shall pay costs of this application to the Respondent. Orders accordingly.
Dated signed and delivered this 28th day of July 2005.
H. M. OKWENGU
JUDGE