[2017] KEHC 4182 (KLR)
The court found that the applicant is entitled to challenge the decision on appeal and that, since there is no automatic right of appeal in succession matters, leave must be sought. The applicant identified arguable questions for the appellate court, satisfying the threshold for grant of leave. The court also found...
Source-derived case information.
- Citation
- [2017] KEHC 4182 (KLR)
- Parties
- Applicant: Applicant; Respondent: Respondent
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 768 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal and Stay Pending Appeal
- Outcome
- Application allowed.
- Judges
- DN Musyoka
- Legal Topics
- Confirmation of Grant, Leave to Appeal, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant
Applicant
Respondent
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal and Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal against the judgment delivered on 27th May 2016.
- 2 Whether a stay of the order allowing liberty to the respondent to apply for confirmation of grant should be granted pending appeal.
Ratio Decidendi
The court found that the applicant is entitled to challenge the decision on appeal and that, since there is no automatic right of appeal in succession matters, leave must be sought. The applicant identified arguable questions for the appellate court, satisfying the threshold for grant of leave. The court also found it appropriate to grant a stay of the liberty to apply for confirmation of grant for thirty days to allow the applicant to pursue the appeal. Costs were ordered to be in the cause.
Court Disposition
Application allowed.
Orders
- Leave to appeal against the judgment delivered on 27th May 2016 is granted.
- Stay of the liberty to apply for confirmation of grant is granted for thirty (30) days.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 768 OF 2008
IN THE MATTER OF THE ESTATE OF GEOFFREY MUCHIRI KAMAU (DECEASED)
RULING
1. The application dated 9th June 2016 seeks leave to appeal against the judgment delivered herein on 27th May 2016 and stay of the order allowing liberty to the respondent to apply for confirmation of grant pending appeal.
2. The grounds upon which the orders are sought are set out on the face of the application and in the affidavit sworn in support. Principally, the applicant is aggrieved by the judgment and would like to appeal against it at the Court of Appeal. It is argued that leave of this court is mandatory according to the decision of the Court of Appeal in Mary Wangui Karanja vs. James Kioi CA No. 69 of 2014.
3. The respondent has objected to the application through grounds of opposition dated 13th July 2016, and filed herein on 14th July 2016. She argues that the applicant has not demonstrated that she has substantial grounds of appeal, has failed to show that she would suffer substantial loss, among others.
4. The application was urged orally on 15th February 2017. Counsel for both sides breathed life to the averments made in their respective documents. I have taken note of the arguments made, inclusive of the authorities cited.
5. The applicant is entitled to challenge decisions of this court on appeal. As there is no automatic right of appeal, it is imperative that leave be sought. She has identified the questions she would like to place before the appellate court, I think they are arguable.
6. Consequently, I shall allow the application dated 9th June 2016 in the terms proposed. Costs shall be in the cause. Leave to appeal and stay of the liberty to apply for confirmation of grant shall be for thirty (30) days. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 2ND DAY OF JUNE, 2017.
W. MUSYOKA
JUDGE