[2012] KEHC 3151 (KLR)
The court found that the interests of justice required the preservation of the status quo pending the hearing of the application inter partes. Given that the applicants had filed an application for stay promptly and that the implementation of the orders would affect the distribution of the estate, the court...
Source-derived case information.
- Citation
- [2012] KEHC 3151 (KLR)
- Parties
- Applicant: Edwin Gitau Kinyuru; Applicant: Francis Karugi Kinyuru; Applicant: Raymond Mbugua Kinyuru; Applicant: Pauline Wanjiku Kinyuru; Respondent: Samuel Wairire Kinyuru; Respondent: Beatrice Wamuhu Kinyuru; Respondent: Miriam Waithera; Respondent: Andrew Njenga; Respondent: Benson Kinyuru Muongi; Respondent: Pauline Nendaya Waithera
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 25 of 2005
- Procedural Posture
- Succession Cause / Interlocutory Application for Stay Pending Appeal
- Outcome
- Interim stay granted pending inter partes hearing.
- Judges
- D Schofield
- Legal Topics
- Distribution of Estate, Beneficiary Entitlement, Stay of Execution, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Gitau Kinyuru
Applicant
Francis Karugi Kinyuru
Applicant
Raymond Mbugua Kinyuru
Applicant
Pauline Wanjiku Kinyuru
Applicant
Samuel Wairire Kinyuru
Respondent
Beatrice Wamuhu Kinyuru
Respondent
Miriam Waithera
Respondent
Andrew Njenga
Respondent
Benson Kinyuru Muongi
Respondent
Pauline Nendaya Waithera
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the orders issued on 27th January 2012 should be granted pending appeal.
- 2 Whether the applicants are entitled to injunctive relief restraining interference with the estate property.
- 3 Whether the application should be heard inter partes before substantive orders are made.
Ratio Decidendi
The court found that the interests of justice required the preservation of the status quo pending the hearing of the application inter partes. Given that the applicants had filed an application for stay promptly and that the implementation of the orders would affect the distribution of the estate, the court exercised its discretion to grant a temporary stay restraining the District Surveyor from proceeding with the implementation of the orders of 27th January 2012. The court directed that the application be served on all respondents and set a date for inter partes hearing, emphasizing that substantive orders would only be made after hearing all parties.
Court Disposition
Interim stay granted pending inter partes hearing.
Orders
- The application to be served on all six named respondents and listed for inter partes hearing.
- Interim stay restraining the District Surveyor Kiambu from implementing the court order of 27th January 2012 until the application is heard on 6th March 2012.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 25 OF 2005
IN THE MATTER OF THE ESTATE OF JAMES KINYURU MUONGI (DECEASED)
EDWIN GITAU KINYURU ……………. 1ST APPLICANT/RESPONDENT
FRANCIS KARUGI KINYURU …….... 2ND APPLICANT/RESPONDENT
RAYMOND MBUGUA KINYURU….... 3RD APPLICANT/RESPONDENT
PAULINE WANJIKU KINYURU …….. 4TH APPLICANT/RESPONDENT
VERSUS
SAMUEL WAIRIRE KINYURU ….....… 1ST RESPONDENT/ APPLICANT
BEATRICE WAMUHU KINYURU ….... 2ND RESPONDENT/APPLICANT
MIRIAM WAITHERA ………..……… 3RD RESPONDENT/APPLICANT
ANDREW NJENGA …………………. 4TH RESPONDENT/APPLICANT
BENSON KINYURU MUONGI …..…. 5TH RESPONDENT/APPLICANT
PAULINE NENDAYA WAITHERA … 6TH RESPONDENT/APPLICANT
RULING
I have perused the Summons dated 3rd February 2012. The Applicants seek in the said summons three orders as follows:
1. THAT the ruling and or order of Hon. Mr. Justice Isaac Lenaola issued and delivered on 27th day of January 2012 on this matter be stayed by this Hon. Court pending determination of intended appeal of the whole suit by the applicant/respondent herein, at the Court of Appeal
2. THAT the Respondent/Applicant herein be restrained by the order of this Hon. Court they themselves their agents, servants, employee or otherwise from interfering, trespassing, destructing, partitioning and or dealing whatsoever with the applicants/respondent
3. THAT such other and/or further relief to be granted as this Court may deem fit and just to grant in the circumstance of this matter.
The Honourable Mr. Justice Isaac Lenaola had on 27th January 2012 made the following orders.
1. Miriam Waithera and Andrew Njenga are lawful children of the deceased and are entitled to the estate.
2. Land parcel No.Gitaru/Muguga/799 shall be shared equally among the children of the deceased with Pauline Nendaya Waithera taking her deceased’s mother’s portion save that Edwin Gitau and Francis Kinyuru shall be entitled to the land where their houses stand and access thereto only.
3. The District Surveyor, Kiambu shall implement this order at the cost of each beneficiary save Edwin Gitau and Francis Kinyuru.
4. Each party shall bear its own costs.
I order that the application be served on the six named Respondents and be listed for inter partes hearing thereafter.
I further direct that the said application shall be heard inter partes on 6th March 2012.
In the meantime, I order stay restraining the District Surveyor Kiambu from proceeding with implementation of the court order until the Application is heard on 6. 3.2012 when further orders shall be made or this order shall be discharged.
Dated at Milimani Law Courts, Nairobi, this 17th day of February 2012.
G.B.M. KARIUKI, SC
JUDGE
COUNSEL APPEARING
Ms Khisa of Mangerere Ngisa & Co. Advocates for the Applicants
Mrs. Morara Advocate for the Respondent
Mr. Kugwa - Court Clerk