[2018] KEHC 1031 (KLR)
The court found that executing the judgment would result in the vesting of titles and subdivision of land among beneficiaries as per the impugned judgment, which could irreversibly alter the status quo. If the appeal succeeds, restoring the original state of affairs would be difficult and prejudicial to the parties....
Source-derived case information.
- Citation
- [2018] KEHC 1031 (KLR)
- Parties
- Applicant: Frida Nechesa Bwile; Respondent: Priscilah Nabalayo Bwile; Respondent: James Anthony Bwile
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 111 of 2008
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Pending Appeal, Administration of Estates, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frida Nechesa Bwile
Applicant
Priscilah Nabalayo Bwile
Respondent
James Anthony Bwile
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the judgment should be granted pending determination of the appeal.
- 2 Whether execution of the judgment would render the appeal nugatory.
Ratio Decidendi
The court found that executing the judgment would result in the vesting of titles and subdivision of land among beneficiaries as per the impugned judgment, which could irreversibly alter the status quo. If the appeal succeeds, restoring the original state of affairs would be difficult and prejudicial to the parties. Therefore, to avoid rendering the appeal nugatory and to preserve the estate pending appeal, a stay of execution was warranted. The court was satisfied that no prejudice would be suffered by any party as the suit land remained intact and in use by the parties even after the deceased's demise.
Court Disposition
application for stay of execution allowed
Orders
- Execution of the judgment delivered on 24/5/2017 is stayed pending determination of the appeal in Kisumu Court of Appeal No. 43 of 2018.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
SUCCESSION CAUSE NO. 111 OF 2008
IN THE MATTER OF THE ESTATE OF ANTHONY BWILE MUKENYA – DECEASED
FRIDA NECHESA BWILE.....................................APPLICANT/RESPONDENT
AND
PRISCILAH NABALAYO BWILE - 1ST ADMINSTRATRIX/APPLICANT
JAMES ANTHONY BWIL................................................2ND ADMINSTRATOR
R U L I N G
1. By her application dated 13th September 2018 the applicant prays for stay of execution of the judgment delivered by this court on 24/5/2017 pending the determination of the appeal number 43 of 2018 now pending at the Court of Appeal in Kisumu. Substantially, the applicant prays that should the judgment be executed then she stands to suffer loss and damage and the appeal rendered nugatory.
2. On their part the respondent content that there is nothing much to be determined by the Court of Appeal as the issue relating to the will are clear and straight forward as the applicant does not dispute the same.
3. The celebrated case of Butt Vs Rent Restriction Tribunal (1979) eKLRlaid down the clear principles to be followed in such an application. Substantively, the same shall be granted if in the opinion of the court, failure to do so shall render the appeal nugatory.
4. Having heard the parties in this matter I am satisfied that if this court's judgment shall be executed, then the titles subsequent to sub division shall vest in the beneficiaries as determined in the grant or the impugned judgment of this court hence the parcels of land shall be mutilated at the expense of the parties herein. Should the Court of Appeal find merit in the pending appeal then restoring the status quo ante shall be onerous on the deceased family.
5. The best thing to do in the circumstances is to put on hold the execution of the judgment to allow the applicants get a second chance at the Court of Appeal.
6. There shall be no prejudice in any event to be suffered by the parties as the suit land is still intact and at any rate they have been utilising even after the demise of the deceased.
7. In the premises the application dated 13/9/18 is hereby allowed in terms of prayer (c) thereof.
There be no orders as to costs.
Delivered, signed and dated at Kitale this 10th day of December, 2018.
________________
H.K. CHEMITEI
JUDGE
10/12/18
In the presence of:
Wanyama holding brief for Ngeywa for Appellant
No appearance for Andambi
Court Assistant – Kirong
Ruling read in open court.