[2014] KEHC 4025 (KLR)
The court recognized the objector's right to appeal and the need to preserve the estate pending the intended appeal. However, noting that the judgment had been delivered almost a year prior and there was no clear evidence of the status of the intended appeal, the court exercised its discretion to grant a stay of...
Source-derived case information.
- Citation
- [2014] KEHC 4025 (KLR)
- Parties
- Applicant: Belia Khayanga Imbiakha; Respondent: Musa Imbiakha Katimba
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 749 of 2007
- Procedural Posture
- Stay Application / Ruling on Applications for Stay of Execution and Implementation of Grant
- Outcome
- Stay of execution granted for 90 days; after expiry, petitioner at liberty to execute court orders.
- Legal Topics
- Succession Proceedings, Grant Confirmation, Stay of Execution, Appeals in Succession, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Belia Khayanga Imbiakha
Applicant
Musa Imbiakha Katimba
Respondent
Procedural Posture
Stay Application / Ruling on Applications for Stay of Execution and Implementation of Grant
Legal Issues
- 1 Whether a stay of execution should be granted pending the intended appeal by the objector.
- 2 Whether the petitioner is entitled to have the estate distributed as per the court's previous orders.
Ratio Decidendi
The court recognized the objector's right to appeal and the need to preserve the estate pending the intended appeal. However, noting that the judgment had been delivered almost a year prior and there was no clear evidence of the status of the intended appeal, the court exercised its discretion to grant a stay of execution for a limited period of 90 days. This period would allow the objector to pursue his appeal, after which the petitioner would be at liberty to execute the court's orders and the surveyors could effect the confirmed grant. The court also directed that proceedings be typed and handed over to the objector upon payment of requisite fees, and ordered that each party bear their...
Court Disposition
Stay of execution granted for 90 days; after expiry, petitioner at liberty to execute court orders.
Orders
- Stay of execution of the court orders granted for 90 days from the date of the ruling.
- Proceedings to be typed and handed over to the objector upon payment of requisite fees.
Full Case Text
Judgment text and source record
12 paragraphs
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 749 OF 2007
IN THE MATTER OF THE ESTATE OF KATIMBA IMBIAKHA ……….… DECEASED
BELIA KHAYANGA IMBIAKHA …………………. PETITIONER
V E R S U S
MUSA IMBIAKHA KATIMBA …………………….. OBJECTOR
R U L I N G
This court made its ruling on the 25. 7.2013 and distributed the deceased’s estate amongst the beneficiaries. The objector, MUSA KATIMBA has filed an application dated 28. 1.2014 seeking stay of execution of the court orders pending the hearing and determination of his intended appeal. The application is supported by his affidavit sworn on the same date. On the other hand the petitioner filed an application dated 19. 12. 2013 seeking to have the District surveyor visit the estate and distribute it as per the court orders.
The two applications were argued together. Counsel for both parties relied on their respective applications and replying affidavits. I have gone through the two applications and note that the objector is not satisfied with the court ruling. The judgment was delivered almost one year ago by now and it is not clear what is the status of the intended appeal. Since I do recognize the objector’s right to pursue his appeal, I will grant stay of execution orders for a period of 90 days from today and order that the proceedings be typed and handed over to the objector upon payment of the requisite fees. After the expiry of 90 days the petitioner shall be at liberty to execute the court orders and the surveyors shall be at liberty to effect the confirmed grant. Each party shall meet his own costs.
Delivered, dated and signed at Kakamega this 10th day of July 2014
SAID J. CHITEMBWE
J U D G E