[2013] KEHC 3449 (KLR)
The court found that the applicant had not demonstrated any error on the face of the record or sufficient cause to warrant review of the ruling dated 16/4/2013. The court emphasized that filing an application for leave to appeal does not equate to having filed an appeal, and that a stay of execution is not automatic...
Source-derived case information.
- Citation
- [2013] KEHC 3449 (KLR)
- Parties
- Appellant: Charles Ndwiga Kanyerya; Respondent: Augustine Muturi Mairani; Respondent: Mwaniki Mairani
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Stay of Execution
- Outcome
- Application for review dismissed; temporary stay of execution granted for 21 days.
- Legal Topics
- Review of Judgment, Stay of Execution, Succession Disputes, Brothers Estate Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ndwiga Kanyerya
Appellant
Augustine Muturi Mairani
Respondent
Mwaniki Mairani
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether the applicant has established grounds for review of the court's ruling dated 16/4/2013.
- 2 Whether a stay of execution should be granted pending further action by the applicant.
- 3 Whether the applicant has properly filed an appeal or application for stay.
Ratio Decidendi
The court found that the applicant had not demonstrated any error on the face of the record or sufficient cause to warrant review of the ruling dated 16/4/2013. The court emphasized that filing an application for leave to appeal does not equate to having filed an appeal, and that a stay of execution is not automatic upon filing an appeal. However, considering the acrimonious nature of the dispute between brothers over their father's estate and the emotive issues of land and succession, the court exercised its discretion under Order 42 rule 6(3) of the Civil Procedure Rules to grant a temporary stay of execution for 21 days. This was to allow the applicant time to properly organize and...
Court Disposition
Application for review dismissed; temporary stay of execution granted for 21 days.
Orders
- Stay of the decree and any orders emanating therefrom for 21 days.
- Caution on the disputed parcels to remain in place for 21 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Civil Appeal 13 of 2010 [if gte mso 9]><![endif]
CHARLES NDWIGA KANYERYA.. ...................APPELLANT/APPLICANT
VERSUS
AUGUSTINE MUTURI MAIRANI..................................1ST RESPONDENT
MWANIKI MAIRANI ….................................................2ND RESPONDENT
(An Appeal from the Judgment of D.A. ONYANGO– Senior Resident Magistrate sitting at RUNYENJES in Succession cause No. 26/2009 delivered on 11/2/2010).
R U L I N G
This is the application for Review filed by way of Notice of Motion dated 24/4/2013 and filed on 25/4/2013. The Applicant has listed 14 grounds in support of his application. A number of these grounds do not reflect the true position on the record. And he is advised to peruse the record before making scandalous statements which are not substantiated. In particular is his ground No.9.
It must be pointed out to the Applicant that an application for leave to file appeal out of time does not amount to leave being granted and appeal being filed. The many papers he has filed herein are not confirmation that an appeal has been filed. It is true as per his submission No.(e) that the Court of Appeal is supreme to the High Court and I salute him for reminding this Court about that supremacy. The position in law is that an appeal in itself does not operate as stay of execution. An application for stay of execution must be made which application he has not made because he has not yet filed any appeal in the Court of Appeal. I am stating all these things so that the Applicant can seek legal advice and file proper applications before the Court.
Having heard this appeal and considered the issues I understand that the issue of land and succession in Embu are so emotive. These are the issues herein. The parties herein are brothers fighting over their father's estate. The Applicant herein would wish to have the Judgment of this Court overturned which right the Law grants to him. And for him to operate within the Law he ought to formally apply for stay of execution. I do appreciate that he is unrepresented.
From a perusal of the record herein I do not find any error to make me interfere with the Ruling of 16/4/2013. However because of the nature of this matter and the acrimony that exists between the parties herein I would wish to invoke the provisions of Order 42 rule 6 (3) Civil Procedure Rules and grant stay of the decree and any orders emanating therefrom for 21 days. Within the 21 days the Caution on the disputed parcels shall remain in place. Secondly the Applicant will have time to reorganize himself and move the Court in the proper manner. If he will not do so then the orders of stay shall be vacated.
Costs in cause.
DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF MAY 2013
H.I. ONG'UDI
J U D G E
In the presence of:-
Applicant
Both Respondents
Njue – C/c
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