[2017] KEHC 7448 (KLR)
The court found that the applicant had satisfied the requirements for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. The application was brought without undue delay, and there was evidence that the applicant had filed and served a record of appeal. The court determined that if the title...
Source-derived case information.
- Citation
- [2017] KEHC 7448 (KLR)
- Parties
- Applicant: Benson Champu Kaperewo; Respondent: Rebecca Chepkuto Kiperenge
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 191 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Preservation of Property, Succession Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Benson Champu Kaperewo
Applicant
Rebecca Chepkuto Kiperenge
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of enforcement of the orders dated 26/5/2016 should be granted pending appeal.
- 2 Whether the applicant has satisfied the requirements for stay under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 3 Whether the preservation of the title deed is necessary to prevent substantial loss.
Ratio Decidendi
The court found that the applicant had satisfied the requirements for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. The application was brought without undue delay, and there was evidence that the applicant had filed and served a record of appeal. The court determined that if the title deed were cancelled as previously ordered and the Court of Appeal later reversed the decision, the applicant would suffer substantial loss. To balance the interests of both parties and preserve the estate, the court ordered that the original title deed for land parcel No. West Pokot/Siyoi 'A'/275 be deposited with the Deputy Registrar. This measure would prevent any party from...
Court Disposition
application allowed
Orders
- The original title deed for land parcel No. West Pokot/Siyoi 'A'/275 shall be deposited with the Deputy Registrar of this Court within 14 days from the date of the ruling.
- Costs in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 191 OF 2006
IN THE MATTER OF THE ESTATE OF KIPERENGE PAPAREWA MIAPEN …......DECEASED
AND
BENSON CHAMPU KAPEREWO ..................APPLICANT/PETITIONER
VERSUS
REBECCA CHEPKUTO KIPERENGE..........RESPODNENT/OBJECTOR
RULING
By the application dated 22/10/2016 the applicant prays that
(1) pending the determination of an appeal at the Court of Appeal there be stay of the enforcement of the orders dated 26/5/2016 emanating from this court.
The same is supported by the sworn affidavit of Benson Champu Kaparewo sworn on the even date together with the attached annextures. Substantially the applicant avers that should this court orders of 26/5/2016 be effected he stands to suffer loss and damage and the intended appeal rendered nugatory. He further argues that he has been on the land for the last 7 years thus the status quo ought to be maintained.
On her part the respondent through her replying affidavit dated 21/11/16 as well as the grounds of opposition has opposed the same. She argued that the applicant's intention is to continue perpetrating the wastage of the land which he has infact been doing by selling it partially. She further argues that it would be safe and appropriate for the title deed to remain under the custody of the Deputy Registrar.
The parties have further filed respective submissions in supporting their position which I have had the benefit of perusing. The usual grounds required under Order 42(6) (2) of the Civil Procedure Rules in such application are three, namely that there shall be substantial loss should the application not allowed; that the application has been brought without undue delay and that if need be a security be provided pending appeal.
I am satisfied that the application has been brought without undue delay. Already there is evidence that the applicant has filed and served a record of appeal.
As to whether the applicant shall suffer any loss, I find the same meritorious. Should the title be cancelled as ordered by this court and the Court of Appeal reverses the decision I find that great loss shall be suffered by the applicant. It is therefore in the interest of the parties who apparently are beneficiaries of the estate to have the title No. West Pokot/Siyoi 'A'/275 preserved.
Pursuant to the above directions and as rightly conceded by the applicant in his further affidavit and so as to alley any fears by the respondent it is fit that this title be deposited int his court.
This will satisfy both parties and any outcome of the intended appeal shall not be rendered nugatory and no loss shall be suffered. Having stated so, there is no other form of security then to be satisfied by the applicant as the title is already with the Deputy Registrar of this Court.
In the premises the application is allowed. Let the original title deed for land parcel No. West Pokot/Siyoi 'A'/275 be deposited with the Deputy Registrar of this Court within the next 14 days from the date herein.
Costs in the cause.
Delivered this 14th day of February 2017.
_____________________
H.K. CHEMITEI
JUDGE
In the presence of;
Kiarie for the Petitioner/Applicant
No appearance for the Respondent
Court Assistant - Kirong