[2025] KEHC 3414 (KLR)
The court found that the ruling of 23rd May 2016, which dismissed the applicant's objection, did not result in any positive or executable order regarding the property in question. Since no order was made for subdivision, partitioning, transfer, or any dealing with Bukhayo/Ebusibwabo/1604, there was nothing to stay....
Source-derived case information.
- Citation
- [2025] KEHC 3414 (KLR)
- Parties
- Applicant: Joseph Peter Aduki; Respondent: Joseph Nyerere Okumu
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 411 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- WM Musyoka
- Legal Topics
- Succession Disputes, Stay of Execution, Objection Proceedings, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Peter Aduki
Applicant
Joseph Nyerere Okumu
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether there exists an executable order capable of being stayed as sought by the applicant.
- 2 Whether the application for stay of execution is merited in the context of dismissed objection proceedings under the Law of Succession Act.
Ratio Decidendi
The court found that the ruling of 23rd May 2016, which dismissed the applicant's objection, did not result in any positive or executable order regarding the property in question. Since no order was made for subdivision, partitioning, transfer, or any dealing with Bukhayo/Ebusibwabo/1604, there was nothing to stay. The application for stay of execution was therefore not properly grounded or conceived, as there was no order capable of being implemented or executed. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 25th June 2024 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
In re Estate of Benjamin Okumu Oduku (Deceased) (Succession Cause 411 of 2011) [2025] KEHC 3414 (KLR) (21 March 2025) (Ruling)
Neutral citation: [2025] KEHC 3414 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Cause 411 of 2011
WM Musyoka, J
March 21, 2025
Ruling
1. The application, dated 25th June 2024, is by Joseph Peter Aduki, for stay of execution of orders that were made in the ruling of Tuiyott J, of 23rd May 2016, with respect to subdivision, partitioning, transfer and or any dealing with a property described as Bukhayo/Ebusibwabo/1604, pending appeal.
2. The principal argument is that the applicant, upon being dissatisfied with the orders made in that ruling, preferred an appeal against the same, at the Court of Appeal, being in Kisumu CACA No. 32 of 2021.
3. The proceedings that Tuiyott J conducted, leading up to the impugned ruling, were in the nature of an objection, under sections 68 and 69 of the Law of Succession Act, Cap 160, Laws of Kenya. Representation to the estate had been sought by Joseph Nyerere Okumu, and the applicant objected, on grounds that he was also a survivor of the deceased, but his name had been omitted from the list of survivors in the petition.
4. After taking oral evidence from several witnesses, presented by both sides, Tuiyott J concluded that the applicant was not a survivor of the deceased, and that he was not entitled to a share in his estate. It was observed that his claim was in the nature of declaration of a trust, which the High Court may not have jurisdiction to make. The objection was dismissed, and that was what he was aggrieved about.
5. The final order, made in the ruling of 23rd May 2016, was in the nature of a dismissal of the objection. No order was made for the doing of anything by anyone. Therefore, there was no order made capable of being implemented or executed. No order was made for the subdivision, partitioning, transfer and or any dealing with a property described as Bukhayo/Ebusibwabo/1604.
6. That being the case, the application, dated 25th June 2024, is not properly conceived or grounded. It has no merit, and I hereby dismiss it. As this is a family matter, I shall not award costs. Orders accordingly.
DELIVERED VIA EMAIL, DATED AND SIGNED, AT BUSIA, THIS 21STDAY OF MARCH 2025. W. MUSYOKAJUDGEArthur Etyang, Court Assistant.AdvocatesMr. Onsongo, instructed by Obwoge Onsongo & Company, Advocates for the applicant.Mr. Ashioya, instructed by Ashioya & Company, Advocates for the administrator.2