[2011] KEHC 803 (KLR)
The court held that the failure to file the application as a Notice of Motion, rather than a Chamber Summons, was a technicality that did not affect the substance of the application and thus did not render it defective. The applicant demonstrated an arguable case regarding his nomination as heir to the rice holding...
Source-derived case information.
- Citation
- [2011] KEHC 803 (KLR)
- Parties
- Appellant: Francis Mureithi Mwangi; Respondent: Susan Wanjira Mwangi; Respondent: Joyce Kirogo Mwangi; Respondent: Frida Micere Mwangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted for 90 days; costs in the cause.
- Legal Topics
- Stay of Execution, Succession Disputes, Nominee Rights, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mureithi Mwangi
Appellant
Susan Wanjira Mwangi
Respondent
Joyce Kirogo Mwangi
Respondent
Frida Micere Mwangi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether failure to file the application as a Notice of Motion renders it fatally defective.
- 3 Whether the applicant has demonstrated that the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court held that the failure to file the application as a Notice of Motion, rather than a Chamber Summons, was a technicality that did not affect the substance of the application and thus did not render it defective. The applicant demonstrated an arguable case regarding his nomination as heir to the rice holding and the division of the property by the lower court. The court found that if execution proceeded, the appeal could be rendered nugatory. However, the court also noted the applicant's delay in prosecuting the appeal and limited the stay of execution to 90 days, with costs in the cause.
Court Disposition
Stay of execution granted for 90 days; costs in the cause.
Orders
- Stay of execution of the judgment dated 15th April 2010 is granted for 90 days.
- Applicant to prepare records for the appeal within the period of stay.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 27 OF 2010
(AN APPEAL FROM THE JUDGMENT OF D.A. OCHARO R.M. AT WANG’URU IN MISC. SUCC. NO.41 OF 2007 DELIVERED ON 15TH APRIL 2010).
FRANCIS MUREITHI MWANGI.............................................APPELLANT
VERSUS
SUSAN WANJIRA MWANGI............................1ST RESPONDENT
JOYCE KIROGO MWANGI...............................2ND RESPONDENT
FRIDA MICERE MWANGI.................................3RD RESPONDENT
R U L I N G
This is the Application dated 9th June 2011. It’s supported by the affidavit of the Applicant. The orders sought are stay of execution of the Judgment dated 15th April 2010 by Resident Magistrate Wanguru pending hearing and determination of this Appeal. He says he was nominated as the heir to his deceased father’s rice holding No.3404 at Mwea Irrigation Settlement. The Judgment did not confirm him as heir. He is aggrieved because of the shares that have been removed from him yet he had been working on the rice field for the last 20 years.
The Respondent has opposed this application saying its defective as it has not followed the procedure under Order 51 Rule 1 Civil Procedures Rules. Secondly she says Order 42 rule 6 (1) Civil Procedure Rules has not been satisfied.
I have considered this application and the affidavits and annextures filed. I have also perused the lower court record. It is clear that the Applicant was a nominee of the deceased for his Rice Holding. It would be important to know how the learned trial magistrate ended up dividing the holding into 3.
Counsel raised an issue about the application being defective for not complying with Order 51 rule 1 Civil Procedure Rules. The Applicant filed a Chamber Summons instead of a Notice of Motion. Order 51 rule 10(2) Civil Procedure Rules provides that no application shall be defeated on a technicality or for want of form that does not affect the substance of the application.
I do not find that failure to file application as Notice of Motion affects the substance of the application.
I however find that the Applicant has an arguable case and if the execution proceeds then his appeal may be rendered nugatory if he succeeds.
I also wish to put the Applicant on notice concerning his deliberate delay in prosecuting this Appeal. The Appeal was admitted on 24/6/2010 and upto now he has not prepared records. I will grant him stay of execution which will only last for 90 days.
Costs in cause.
DATED, SIGNED AND DELIVERED AT EMBU THIS 15TH DAY OF DECEMBER 2011
H.I. ONG’UDI
J U D G E