[2019] KEHC 10973 (KLR)
The court determined that proceeding with the execution of the distribution orders while a substantive application for review was pending could result in prejudice and awkward circumstances for the parties, especially if the review succeeded. To avoid such prejudice and ensure orderly administration of justice, the...
Source-derived case information.
- Citation
- [2019] KEHC 10973 (KLR)
- Parties
- Applicant: Monica Wairimu Kamau; Respondent: Lois Wanjiku Mbai; Respondent: Jane Wambui Mbai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 107 of 1991
- Procedural Posture
- Succession Cause / Ruling on Application for Execution and Adjournment Pending Review
- Outcome
- Application for execution adjourned pending determination of review application.
- Judges
- AO Muchelule
- Legal Topics
- Succession, Estate Distribution, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Wairimu Kamau
Applicant
Lois Wanjiku Mbai
Respondent
Jane Wambui Mbai
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Execution and Adjournment Pending Review
Legal Issues
- 1 Whether the court should execute the distribution orders despite a pending application for review by a co-administrator.
- 2 Whether the execution of the orders would prejudice the parties if the review application succeeds.
Ratio Decidendi
The court determined that proceeding with the execution of the distribution orders while a substantive application for review was pending could result in prejudice and awkward circumstances for the parties, especially if the review succeeded. To avoid such prejudice and ensure orderly administration of justice, the court exercised its discretion to adjourn the execution application and directed that the review application be heard and determined first. This approach upholds the principles of fairness and proper administration of estates under succession law.
Court Disposition
Application for execution adjourned pending determination of review application.
Orders
- The application dated 16th July 2018 is adjourned.
- The application for review filed on 13th August 2018 shall be heard and determined first.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 107 OF 1991
IN THE MATTER OF THE ESTATE OF JAMES MBAI GATHURI ALIAS GATHURI (DECEASED)
MONICA WAIRIMU KAMAU...........APPLICANT
VERSUS
LOIS WANJIKU MBAI............1ST RESPONDENT
JANE WAMBUI MBAI............2ND RESPONDENT
RULING
1. The application dated 16th July 2018 seeks to execute the orders contained in the ruling delivered on 31st May 2018 distributing the estate of the deceased. The applicant Monica Wairimu Kamau was allocated 0. 035Ha of Dagoretti/Uthiru/88 to use during her lifetime and thereafter the portion to be shared equally between her children. Her case was that her co-administrators Lois Wanjiku Mbai and Jane Wambui Mbai (the respondents) had refused to sign transfer papers to effect the order of distribution. She wanted them forced to sign failing which the deputy registrar does sign on their behalf. The application was not opposed.
2. However, I can see on record there is an application filed on 13th August 2018 by Lois Wanjiku Mbai (1st respondent) which seeks the review of the ruling that is sought to be executed. In the application, Lois states that the court mixed up parcels Dagoretti/Uthiru 83 and 88 in paragraph 17 of the ruling; that the mixture has led to unintended consequences in the distribution; and that this should be corrected by review.
3. If the instant application is determined and execution proceeds, and the review is eventually heard and decided in favour of Lois, the parties will be placed in awkward and prejudicial circumstances.
4. That being the case, I adjourn the present application. I direct that the application filed on 13th August 2018 be heard and determined first. The application (by Lois) shall be heard on 4th March 2019. Both Monicah Wairimu Kamau and Jane Wambui Mbai should be served with it and should respond within 14 days from the date of service.
5. I make no orders as to costs.
DATED and DELIVERED at NAIROBI this 31ST day of JANUARY 2019.
A.O. MUCHELULE
JUDGE