[2014] KEHC 6109 (KLR)
The court found that the appellant, as the wife of the deceased, faces eviction from the family home and that her appeal is arguable. Applying the principles in Giella v Cassman Brown, the court held that the appellant stands to suffer irreparable harm if the stay is not granted. Therefore, the court exercised its...
Source-derived case information.
- Citation
- [2014] KEHC 6109 (KLR)
- Parties
- Appellant: Fatuma Ahmed Brek; Respondent: Feisal Ahmed Karama
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 21 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution granted pending appeal.
- Judges
- JV Juma
- Legal Topics
- Stay of Execution, Injunctions, Succession Estates, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Ahmed Brek
Appellant
Feisal Ahmed Karama
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the Kadhi's court orders pending appeal.
- 2 Whether the appellant will suffer irreparable harm if the stay is not granted.
Ratio Decidendi
The court found that the appellant, as the wife of the deceased, faces eviction from the family home and that her appeal is arguable. Applying the principles in Giella v Cassman Brown, the court held that the appellant stands to suffer irreparable harm if the stay is not granted. Therefore, the court exercised its discretion to grant a stay of execution of the Kadhi's court orders pending the hearing and determination of the appeal.
Court Disposition
Application for stay of execution granted pending appeal.
Orders
- A stay of execution of the orders granted by the Hon. Kadhi on 27th June, 2013 is granted pending the hearing and determination of the appeal.
- Costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 21 OF 2013
FATUMA AHMED BREK……...…………….……………...APPELLANT
VERSUS
FEISAL AHMED KARAMA………….……………….……RESPONDENT
RULING
Before court is the Notice of Motion dated 4th October, 2013 seeking orders for a stay of execution of the orders granted by the Hon. Kadhi on 27th June, 2013 pending the hearing and determination of this appeal. This application/appeal arises from the decision of the Hon. Kadhi in Kadhi’s Civil Case No. 123 of 2009. The application which was opposed was disposed of by way of written submissions.
I have carefully considered the submissions of both parties in respect of this matter. I note that the matter in the Kadhi’s court was basically a succession cause relating to the estate of one AHMED KARAMA ABDALLA. The applicant is the wife to the deceased while the respondent is his son. The appellant now faces eviction from the family home. I have taken into account the principles for issue of injunctions as set out in the case of GIELLA –VS – CASSMAN BROWN 1973 E.A. 358. It if my considered view that the appellant has an arguable appeal that she stands to suffer irreparable harm if the orders sought are not granted. I find the present application to be meritous and I therefore grant a stay of execution pending the hearing and determination of the appeal. Costs in the cause.
Dated and delivered in Mombasa this 31st day of March, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Nangoye h/b Mr. Khatib
Mr. Okemwa h/b Mr. Ali