[2018] KEHC 243 (KLR)
The court found that the applicant had failed to file an appeal or prosecute the application for stay of execution for over 16 months since filing the notice of appeal. The applicant had also not served the application for stay on the respondent. The court held that there was no plausible reason to delay the...
Source-derived case information.
- Citation
- [2018] KEHC 243 (KLR)
- Parties
- Applicant: Trufena Mwavaga; Respondent: David Khasievera Anusu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 696 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal not prosecuted; court proceeds to sign certificate of confirmation of grant.
- Judges
- CM Njagi
- Legal Topics
- Succession Procedure, Confirmation of Grant, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trufena Mwavaga
Applicant
David Khasievera Anusu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the grant pending appeal.
- 2 Whether the delay in prosecuting the application for stay and filing the appeal justifies refusal to delay confirmation of grant.
Ratio Decidendi
The court found that the applicant had failed to file an appeal or prosecute the application for stay of execution for over 16 months since filing the notice of appeal. The applicant had also not served the application for stay on the respondent. The court held that there was no plausible reason to delay the confirmation of grant, as there was neither a pending appeal nor an operative stay of execution. The respondent's request to proceed with the confirmation of grant was therefore justified, and the court would sign the certificate of confirmation of grant as prayed.
Court Disposition
Application for stay of execution pending appeal not prosecuted; court proceeds to sign certificate of confirmation of grant.
Orders
- The court will proceed to sign the certificate of confirmation of grant as prayed by the advocate for the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 696 OF 2009
DANIEL KHASIEVERA ANUSU........................................DECEASED
AND
TRUFENA MWAVAGA.......................................................APPLICANT
V E R S U S
DAVID KHASIEVERA ANUSU.....................................RESPONDENT
R U L I N G
On the 25th may, 2017 the court allowed the distribution of the deceased’s property as proposed by the respondent. The applicant in the petition filed a notice of appeal dated 31st May, 2017. On 19th June, 2017 he filed an application under certificate of urgency seeking for stay of execution pending appeal. The application has not been heard to date.
The matter came for mention on 24th July, 2018 when Mr. Nadwa for the respondent informed the court that the applicant has since not filed an appeal. Further that the applicant has not served them with any application for stay of execution pending appeal. That there are no orders for stay of execution pending appeal. The advocate asked the court to proceed to sign the certificate of confirmation of grant since there is no appeal filed neither is there stay of execution ordered.
Mr. Arwanda for the applicant conceded that they have not filed the appeal neither have they prosecuted the application for stay pending appeal.
The notice of appeal was filed on 31st May, 2017. It is now 16 months since when the notice was filed. There is no appeal filed. The applicant has not prosecuted the application for stay of execution pending appeal. He has not even served the said application on the advocates for the respondent. The applicant has conducted the matter with a lot of lethargy. There is no plausible reason for the court to delay in signing the certificate of confirmation of grant. The court will thereby proceed to sign the grant as prayed by the advocate for the respondent.
Delivered, dated and signed in open court this 31st day of October, 2018.
J. NJAGI
JUDGE
In the presence of:
………………………………………….for applicant
………………………………………….for respondent
George……………………………….court assistant
Parties:
Applicant ………………………………………….
Respondent ……………………………………..