[2020] KEHC 5465 (KLR)
The court held that it lacked jurisdiction to entertain the notice of motion because the application introduced fresh matters and sought orders against individuals who were not parties to the appeal. The appellate court's mandate is limited to issues arising from the appeal itself, and it cannot adjudicate on new...
Source-derived case information.
- Citation
- [2020] KEHC 5465 (KLR)
- Parties
- Appellant: Gladys Shanyisa; Respondent: Gladys Maraka; Respondent: Josephine Khalwale; Respondent: Achayo Josephine Okechi; Respondent: Brown Shikali; Respondent: Sheila Maraga
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Appeal 4 of 2019
- Procedural Posture
- Succession Appeal / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- CM Njagi
- Legal Topics
- Jurisdiction on Appeal, Intermeddling With Estate, Injunctions in Succession, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Shanyisa
Appellant
Gladys Maraka
Respondent
Josephine Khalwale
Respondent
Achayo Josephine Okechi
Respondent
Brown Shikali
Respondent
Sheila Maraga
Respondent
Procedural Posture
Succession Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the High Court sitting as an appellate court has jurisdiction to entertain fresh matters not subject to the appeal.
- 2 Whether the application for injunction and punishment for intermeddling can be entertained against persons not parties to the appeal.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the notice of motion because the application introduced fresh matters and sought orders against individuals who were not parties to the appeal. The appellate court's mandate is limited to issues arising from the appeal itself, and it cannot adjudicate on new disputes or grant reliefs unrelated to the subject of the appeal. Entertaining such an application would amount to an abuse of the court process. Consequently, the application was found to be without merit and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application dated 10th September, 2019 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION APPEAL NO. 4 OF 2019
GLADYS SHANYISA................................APPELLANT/APPLICANT
VERSUS
GLADYS MARAKA.......................................................RESPONDENT
AND
JOSEPHINE KHALWALE.......................1ST INTERESTED PARTY
ACHAYO JOSEPHINE OKECHI...........2ND INTERESTED PARTY
BROWN SHIKALI....................................3RD INTERESTED PARTY
SHEILA MARAGA..................................4TH INTERESTED PARTY
RULING
1. The applicant herein has filed a notice of motion dated 10th September, 2019 seeking for orders that:-
(i) Spent
(ii) The interested parties/respondents be punished by the Honourable Court for intermeddling with estate of a deceased person.
(iii) An order of injunction be issued restraining the respondents either in person or through their agents, workers, tenants or any other person acting under their instruction from trespassing on, constructing, working on or in any other manner interfering with land parcel No. Kakamega/Tiriki/805 the property of the deceased herein.
(iv) Costs be provided for.
2. The application was premised on grounds on the face of the application and supported by the affidavit of the applicant. The application is based on the grounds that the succession cause that the applicant had filed at the lower court being Kakamega CM Succession Cause No. 195 of 2017 was dismissed thereby leaving the estate unadministered. That the interested parties herein are intermeddling with the estate by constructing permanent structures and tilling land without lawful authority. She thereby seeks for orders stated.
3. The application was opposed by the interested parties vide their preliminary objection dated 1st November, 2019 on the grounds that the court sitting as an appellate court lacks jurisdiction to entertain the subject matter within the appeal suit. That the court lacks the locus to prosecute matters raised in the application and that the application is an abuse of the appellate process of the court.
4. I have considered the application and the objection thereto. The applicant moved to this court in this matter by way of an appeal filed on 28th February, 2019. The appeal is against one Gladys Maraga. Then on the 10th September, 2019 she filed the instant notice of motion against some other people who are not parties to the appeal. She is seeking for orders of injunction against the said people and for them to be punished for intermeddling with the estate of the deceased.
5. There is no doubt that the notice of motion is misguided and an abuse of the process of the court. This court has no jurisdiction to adjudicate on fresh matters during an appeal on matters that are not the subject of the appeal. There is totally no merit in the application dated 10th September, 2019. The same is dismissed with costs to the respondents.
Delivered, dated and signed at Kakamega this 29th day of May, 2020.
J. N. NJAGI
JUDGE
In the presence of:
No appearance for the Appellant
No appearance for the Respondent
No appearance for the interested parties
Court Assistant - Polycap