[2024] KEHC 3582 (KLR)
The court found that the ruling of 20th March, 2024 was a negative order, meaning there was nothing to stay as it did not require any positive act or execution. The applicants failed to demonstrate what substantial loss they would suffer if the proceedings continued. Further, the court held that staying proceedings...
Source-derived case information.
- Citation
- [2024] KEHC 3582 (KLR)
- Parties
- Applicant: Grace Samson Komen; Applicant: Michael Kigen Komen Komen; Applicant: Mohamed Tanui Komen; Respondent: Peter Kipruto Komen; Respondent: Abdulghani Mohamed Komen; Respondent: Abrulkadir Mohammed; Respondent: Evan Kiptui Komen
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 500 of 1997
- Procedural Posture
- Succession Cause / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- SM Mohochi
- Legal Topics
- Probate and Administration, Stay of Execution, Beneficiaries Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Samson Komen
Applicant
Michael Kigen Komen Komen
Applicant
Mohamed Tanui Komen
Applicant
Peter Kipruto Komen
Respondent
Abdulghani Mohamed Komen
Respondent
Abrulkadir Mohammed
Respondent
Evan Kiptui Komen
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of its ruling dated 20th March, 2024 pending appeal.
- 2 Whether the ruling of 20th March, 2024 is a negative order capable of being stayed.
- 3 Whether the applicants have demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the ruling of 20th March, 2024 was a negative order, meaning there was nothing to stay as it did not require any positive act or execution. The applicants failed to demonstrate what substantial loss they would suffer if the proceedings continued. Further, the court held that staying proceedings that have been ongoing for over 27 years would prejudice the interests of a wide range of beneficiaries and interested parties, contrary to the principles of Order 63, which seeks to prevent justice from being defeated by delay. The application was therefore found to be devoid of merit and dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 15th April, 2024 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
In re Estate Kibowen Komen (Deceased) (Succession Cause 500 of 1997) [2024] KEHC 3582 (KLR) (16 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3582 (KLR)
Republic of Kenya
In the High Court at Nakuru
Succession Cause 500 of 1997
SM Mohochi, J
April 16, 2024
Between
Grace Samson Komen
1st Applicant
Michael Kigen Komen Komen
2nd Applicant
Mohamed Tanui Komen
3rd Applicant
and
Peter Kipruto Komen
1st Respondent
Abdulghani Mohamed Komen
2nd Respondent
Abrulkadir Mohammed
3rd Respondent
Evan Kiptui Komen
4th Respondent
Ruling
1. Upon considering the application dated 15th April, 2024, filed under Certificate of Urgency brought pursuant to Order 42 Rule 49 of Civil Procedure Rule and 63 of Probation and Administration Rules.
2. That this Court issues Orders of stay of execution of ruling pending an impending appeal against my ruling dated 20th March, 2024.
3. Having heard the parties for and against, I am constrained to disallow the application for the following reasons: -a.There is nothing to stay my ruling of 20th March, 2024 is a negative order that cannot be stayed. Case Law: Western College of Arts & Applied Science Vs. Oranga & Others 1976 – 1980 KLR:But what is there to be executed in Judgement.”b.That by staying proceedings that are over 27 years without a flinch as to what prejudice, the delay shall occasion the broad and diverse interest groups of beneficiaries, 2nd generation and 3rd generation beneficiaries, creditors, interested parties is in itself negating the principles of Order 63 which is intended to prevent ends of justice being defeated.c.Thirdly, the Applicants have not demonstrated what substantial loss shall be occasioned on them should the proceedings proceed/continue.d.I reiterate my holding at paragraph 36 of my ruling dated 20th March, 2023 that beneficiaries are only entitled to the net estate and that such entitlement only crystalizes upon confirmation transmission and registration nothing less.e.Having been reluctant to condemn parties in family disputes, this is a classical move by the Applicant to weaponized the litigation and having been unsuccessful I shall condemn her to costs.f.For the foregoing reasons, I exercise my discretion and find the application dated 15th April, 2024 to be devoid of merit.The challenge to the Ruling can continue whilst these proceedings continue.g.The application is dismissed with costs to the Respondents.
It is so Ordered.
SIGNED, DATED AND DELIVERED AT NAKURU ON THIS 16TH DAY OF APRIL 2024. MOHOCHI S. M.JUDGE