[2009] KEHC 1774 (KLR)
The court found that the applicant failed to demonstrate the existence of a valid appeal or notice of appeal on record, which is a prerequisite for the grant of a stay of proceedings or orders pending appeal. The court further held that the applicant's fears regarding the transfer of estate assets to third parties...
Source-derived case information.
- Citation
- [2009] KEHC 1774 (KLR)
- Parties
- Applicant: Anne Waitherero Muriuki; Respondent: Ann Gathoni Thuku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 178 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Grant of Letters of Administration, Stay of Proceedings, Appeal Prerequisites
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Waitherero Muriuki
Applicant
Ann Gathoni Thuku
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of the court's previous order naming the objector as administrator of the estate pending appeal.
- 2 Whether the applicant has demonstrated the existence of a valid appeal to warrant a stay of proceedings.
Ratio Decidendi
The court found that the applicant failed to demonstrate the existence of a valid appeal or notice of appeal on record, which is a prerequisite for the grant of a stay of proceedings or orders pending appeal. The court further held that the applicant's fears regarding the transfer of estate assets to third parties were unfounded, as no transfers could occur before the grant is issued and confirmed. Consequently, the applicant did not qualify for the orders sought, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of the court's previous order and for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 178 of 2008
IN THE MATTER OF ESTATE OF DAVID MURIUKI KABERERE (DECEASED)
ANNE WAITHERERO MURIUKI …………………………….…..THE PETITIONER
versus
ANN GATHONI THUKU……………………………………….……THE OBJECTOR
RULING
Following my ruling in this cause on 4/6/2009, ANNE WAITHERERO MURIUKI, who has preferred an appeal against my decision, is back to court seeking an order to stay (sic) my order in which I found that ANN GATHONI THUKU had a right to be named as an administrator of the estate of the late DAVID MURIUKI KABERERE, with whom she had cohabited as man and wife. Anne also seeks an order to stay further proceedings herein, and in both instances she prays that if granted the orders be issued pending the hearing and determination of her appeal.
Though the applicant claims to have filed her Notice of appeal on 13/3/2009, which was long before I delivered the contentious ruling, she did not attach a copy of the notice and in the circumstances her application is bound to fail for lack want of an appeal, which is required of an applicant in an application of this nature.
The application is however opposed on the grounds that if the orders are granted there will be continued wanton wastage of the estate, and she relies on the grounds that unless the orders which she seeks are granted her appeal stands to be rendered nugatory as the estate will have been distributed and most likely disposed of to 3rd parties.
I have considered the application and in my mind the issue of transfer to third parties does not hold any water for no transfers can take effect as the Grant has yet to issue after which it must be confirmed, in any event, her counsel informed the court that all the assets which comprise the estate are fully preserved.
All in all I find that this applicant who has failed to demonstrate that she has an appeal on the records cannot otherwise qualify for the orders which she seeks.
I dismiss her application with costs.
Dated and delivered at Nairobi this 6th day of August 2009.
JEANNE GACHECHE
Judge
Delivered in the presence of:
For the applicant – Mr. Omulele holding brief for Mr. Mutunga
For the respondent – No appearance