[2014] KEHC 3424 (KLR)
The court found that, although the Law of Succession Act does not expressly provide for appeals as of right, the applicant should be given an opportunity to appeal in the interest of justice. Rule 73 of the Probate and Administration Rules empowers the court to make orders necessary for justice. The court determined...
Source-derived case information.
- Citation
- [2014] KEHC 3424 (KLR)
- Parties
- Applicant: Faith Mumbua Mutua; Respondent: Francis Mwanza Mulwa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 776 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal and Stay of Proceedings
- Outcome
- Leave to appeal to the Court of Appeal granted. No order as to costs.
- Judges
- LN Mutende
- Legal Topics
- Leave to Appeal, Stay of Proceedings, Confirmation of Grant, Interests of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Faith Mumbua Mutua
Applicant
Francis Mwanza Mulwa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal and Stay of Proceedings
Legal Issues
- 1 Whether the applicant should be granted leave to appeal to the Court of Appeal against the ruling of 12th June 2014.
- 2 Whether a stay of proceedings and orders pending appeal should be granted.
Ratio Decidendi
The court found that, although the Law of Succession Act does not expressly provide for appeals as of right, the applicant should be given an opportunity to appeal in the interest of justice. Rule 73 of the Probate and Administration Rules empowers the court to make orders necessary for justice. The court determined that granting leave to appeal would not prejudice the parties and would allow the applicant to be heard in a superior court. The prayer for stay of proceedings was deemed spent, as it was to lapse upon determination of the application.
Court Disposition
Leave to appeal to the Court of Appeal granted. No order as to costs.
Orders
- Leave is granted to the applicant to appeal to the Court of Appeal as prayed.
- No orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 776 OF 2010
IN THE MATTER OF THE ESTATE OF JIMMY MUTUA MULWA (DECEASED)
FAITH MUMBUA MUTUA ……………….……………….. APPLICANT
VERSUS
FRANCIS MWANZA MULWA ………………………….. RESPONDENT
R U L I N G
The application dated 23rd June 2014 is for leave to appeal to the court of appeal. It also seeks stay of proceedings and orders given herein pending hearing and determination of this application.
The application is premised on grounds that the applicant is aggrieved by the decision of the court dated 12th June 2014;the succession Act does not provide for appeals as of right; the appeal raises weighty issues which can only be adjudicated upon by the Court of Appeal and the leave sought
will serve ends of justice and will not in any manner prejudice the applicant.
In support of the application is an affidavit deponed by the applicant who reiterates what is stated in the grounds forming the body of the application.
The respondent opposed the application. In her affidavit in reply not dated but filed herein on the 4th July 2014 she depones that no appeal has been annexed to establish the weighty issues to be assessed from his application. The application is intended to delay this suit from proceeding with the confirmation of the grant. There are minors in the matter, a delay in confirmation of the grant will be prejudicial to them as they will not be able to finalize their education and the respondent is in the process of disposing off the deceased’s property without due regard to the needs of the beneficiaries.
Although the Law of Succession Act does not specifically provide for appeals as of right Rule 73 of the Probate and Administration Rules gives the court the inherent power to make orders that may be necessary for ends of justice to be met.
The applicant has stated that he intends to appeal against the ruling of the court, he must be given such an opportunity since it is in the interest of justice that he be accorded a hearing in the superior court.
Stay of proceedings and order sought was to lapse upon determination of
“this application”. This being the case it will not be necessary to grant such an order as the prayer has been spent.
Consequently, I do grant leave to the applicant to appeal to the Court of Appeal as prayed.
No orders as to costs.
It is so ordered.
DATED, SIGNEDand DELIVERED at MACHAKOS this 28 TH day of JULY, 2014.
L.N. MUTENDE
JUDGE