[2019] KEHC 382 (KLR)
The court found that, although the merits of the applicant's case may be academic, the applicant had raised an arguable point of law regarding the mode of distribution of the estate and the application of Sections 35, 38, and 40 of the Law of Succession Act. The court was persuaded that leave to appeal should be...
Source-derived case information.
- Citation
- [2019] KEHC 382 (KLR)
- Parties
- Applicant: Jane Muthoni Njogu; Respondent: Virginia Wangari Kamau
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 57 of 2015
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal and Stay of Execution
- Outcome
- Application allowed. Leave to appeal granted and stay of execution ordered.
- Judges
- DB Nyakundi
- Legal Topics
- Succession, Leave to Appeal, Stay of Execution, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Muthoni Njogu
Applicant
Virginia Wangari Kamau
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal and Stay of Execution
Legal Issues
- 1 Whether the applicant has satisfied the criteria for special leave to appeal to the Court of Appeal against the judgement dated 15th October, 2019.
- 2 Whether the circumstances warrant a stay of execution of the judgement pending appeal.
Ratio Decidendi
The court found that, although the merits of the applicant's case may be academic, the applicant had raised an arguable point of law regarding the mode of distribution of the estate and the application of Sections 35, 38, and 40 of the Law of Succession Act. The court was persuaded that leave to appeal should be granted to allow the appellate court to consider the issue. Further, the court exercised its discretion to grant a stay of execution of the judgement, finding that the applicant had demonstrated that the appeal could be rendered nugatory if the stay was not granted. The notice of motion dated 28th October, 2019 was therefore allowed in its entirety.
Court Disposition
Application allowed. Leave to appeal granted and stay of execution ordered.
Orders
- Leave to appeal against the judgement dated 15th October, 2019 is granted to the applicant.
- Stay of execution of the judgement and decree pending hearing and determination of the appeal is granted.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
SUCCESSION CAUSE NO. 57 OF 2015
IN THE MATTER OF THE ESTATE OF JOHN MACHARIA NGETHE (DECEASED)
JANE MUTHONI NJOGU........................................................PETITONER
AND
VIRGINIA WANGARI KAMAU................................................OBJECTOR
Coram: Hon. Justice R. Nyakundi
Mr. Mureithi for the Petitioner
Mr. Mwaure for the Objector
RULING
This an application by Virginia Wangare Kamau in which she seeks two orders of this court. The first being leave to appeal against the decision of the court dated 15th October, 2019. That pursuant to prayer No. (1) stay of execution of the judgement and decree arising as a consequence of the decision pending the hearing and determination of the appeal.
The factual background of case are to be deduced from the pleadings, evidence, submissions by both counsel and final judgement of the court. In proceeding to determine the notice of motion filed in court on 29th October, 2019, I need not labour the point on the salient issues and this court is appreciative of the dispute as ventilated by the parties.
Analysis
The central issue can be distilled into two:
1. Firstly, whether the applicant has satisfied the criteria to approach this court for special leave to appeal to the Court of Appeal against the judgement dated 15th October, 2019.
2. Secondly, corollary to issue No. (1) whether the circumstances demand a stay of execution as of right and on the basis of the applicable principles.
Issue No. 1
It is plain form the provisions of Section 50(2) of the Law of Succession, an appeal to the Court of Appel is founded on prior leave being granted and on a point of Law. The special feature identified by the section to warrant such special leave to appeal is on such an error of law on the matter if left intact is likely to occasion substantial injustice.
In the instant motion the applicant arguments are such that the court’s interpretation on mode of distribution of the Estate erred in not taking into account that special circumstances existed not to apply the doctrine of equal share in terms of Section 35, 38 and 40 of the law of succession.
I accept that the applicant feels aggrieved that it would be a terrible injustice and unconscionable, though I am not sure that she has an arguable case on the merits albeit academic to me I am persuaded to grant leave to have the issue heard and determined on appeal.
With regard to stay under Order 42 Rule 6 of the Civil Procedure Rules, the grounds adduced by the applicant in her affidavit that to the best of her information and belief that she has good chances of success on appeal persuades me to exercise discretion to grant stay of execution of the judgement that would otherwise render the appeal nugatory. Therefore the applicant’s notice motion dated 28th October, 2019 is hereby allowed.
RULING READ AND DELIVERED IN OPEN COURT AT MALINDI THIS 23RD DECEMBER, 2019.
..........................
R. NYAKUNDI
JUDGE
In the presence of: -
Mr. Gekanana for Mr. Mureithi