[2019] KEHC 11064 (KLR)
The court found that the application for confirmation of grant filed after the judgment was unnecessary because the estate had already been distributed by the judgment. The only step remaining was the issuance of a certificate of confirmation and execution of the decree. Therefore, there were no further proceedings...
Source-derived case information.
- Citation
- [2019] KEHC 11064 (KLR)
- Parties
- Applicant: Dr. Symon Wairagu Githae; Respondent: Albert Njeru Githae
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1106 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application dismissed with costs.
- Judges
- AO Muchelule, A Ali-Aroni
- Legal Topics
- Succession, Confirmation of Grant, Oral Will, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Symon Wairagu Githae
Applicant
Albert Njeru Githae
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the application for stay of proceedings pending appeal was competent in light of the judgment already distributing the estate.
- 2 Whether there were any proceedings capable of being stayed after the judgment and pending issuance of the certificate of confirmation.
Ratio Decidendi
The court found that the application for confirmation of grant filed after the judgment was unnecessary because the estate had already been distributed by the judgment. The only step remaining was the issuance of a certificate of confirmation and execution of the decree. Therefore, there were no further proceedings capable of being stayed, and the applicant should have sought a stay of execution instead. The application for stay of proceedings was thus misconceived and dismissed with costs.
Court Disposition
Application dismissed with costs.
Orders
- The application dated 22nd June 2018 for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1106 OF 2010
IN THE MATTER OF THE ESTATE OF CYRUS MBEERE GITHINJI (DECEASED)
DR. SYMON WAIRAGU GITHAE……2ND ADMINISTRATOR/APPLICANT
VERSUS
ALBERT NJERU GITHAE……..…1ST ADMINISTRATOR/RESPONDENT
RULING
1. On 5th October 2017 this court gave a judgment in which it distributed the estate of the deceased Cyrus Mbeere Githinji to the beneficiaries who were his children. The children were ordered to share the estate equally. The applicant Symon Wairagu Githae was one of the children. He was aggrieved by the judgment and filed an appeal on 11th October 2017. The main ground in the appeal was that the deceased had left an oral will on how the estate should be shared; but that this court had found that there was no oral will and had gone ahead to distribute the estate under section 38of theLaw of Succession Act (Cap.160). In the application dated 22nd June 2018 he sought the stay of proceedings herein pending the hearing and determination of the appeal. His case was that there is an application for confirmation dated 4th February 2018 which is scheduled for hearing; that, if the proceedings are not stayed, the application will be heard and determined, and that will occasion him substantial loss and would render the appeal nugatory.
2. The application was opposed by his brother Albert Njeru Githae (the respondent) whose case was that the appeal has no chances of success and that the same would not be rendered nugatory if the application is dismissed.
3. I note that the application dated 4th February 2018 and filed on 5th March 2018 to confirm the grant was wholly not necessary. This is because the estate was shared through the judgment that is the subject of the appeal. The proceedings leading to the judgment were in respect of the application filed on 29th August 2011 to have the grant confirmed. It was by the respondent. It was opposed by the applicant. The application was heard by way of oral evidence. What should follow is the issuance of a certificate of confirmation in terms of the judgment. A decree in terms of the certificate will then be executed.
4. Ideally then, the applicant ought to have brought an application to stay the execution of the decree/the certificate of confirmation. Otherwise, the cause has no other proceedings capable of being stayed. To that extent the application is misconceived. It is dismissed with costs.
DATED and SIGNED at Nairobi this 19TH day of FEBRUARY 2019
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at Nairobi this 26TH day of FEBRUARY 2019
ALI-ARONI
JUDGE