[2022] KEHC 13448 (KLR)
The court found that the applicant had promptly taken steps to appeal, including filing a notice of appeal and requesting certified proceedings. The court recognized the applicant's right to seek a second opinion from the Court of Appeal and held that it was logical to preserve the subject matter of the dispute...
Source-derived case information.
- Citation
- [2022] KEHC 13448 (KLR)
- Parties
- Applicant: Musa Imbiakha Katimba; Respondent: Belia Khayanga Imbiakha
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 749 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- WM Musyoka
- Legal Topics
- Stay of Execution, Appeals Process, Title Cancellation, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Musa Imbiakha Katimba
Applicant
Belia Khayanga Imbiakha
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the orders cancelling land titles pending appeal.
- 2 Whether the applicant has demonstrated sufficient grounds for the grant of stay of execution.
Ratio Decidendi
The court found that the applicant had promptly taken steps to appeal, including filing a notice of appeal and requesting certified proceedings. The court recognized the applicant's right to seek a second opinion from the Court of Appeal and held that it was logical to preserve the subject matter of the dispute pending the appeal. The court therefore granted the stay of execution to prevent the appeal from being rendered nugatory and to ensure that the applicant's right to appeal was not prejudiced by the implementation of the impugned orders.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the orders made on October 2, 2020 is granted pending appeal.
Full Case Text
Judgment text and source record
13 paragraphs
In re Estate of Katimba Imbiakha (Deceased) (Succession Cause 749 of 2007) [2022] KEHC 13448 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13448 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 749 of 2007
WM Musyoka, J
September 23, 2022
Ruling
1. The application for determination is dated October 23, 2020. It is brought at the instance of Musa Imbiakha Katimba. He seeks stay of execution of orders that were made herein on October 2, 2020. He avers that he was aggrieved by those orders, as they related to cancellation of titles issued during the lifetime of the deceased, and he feared that implementation or execution of the orders could occasion loss to him. He avers that he has filed a notice of appeal, as he intended to move the Court of Appeal appropriately.
2. The application is opposed by Belia Khayanga Imbiakha. She argues that the applicant has not demonstrated the loss that he was likely to suffer. She further states that the applicant has not demonstrated what ought to be stayed.
3. I delivered a ruling herein on October 2, 2020, where I ordered cancellation of the subdivisions of South Kabras/Chesero/xxx and xxxx, and reversion of the property to the name of the deceased herein, to facilitate enforcement of the consent orders of November 27, 2008. These are the orders that the applicant is aggrieved about. I see that he lodged a notice of appeal herein on October 7, 2020, bearing the same date. He also lodged a request herein on October 30, 2020 for typed and certified copies of the proceedings, and the proceedings have since been typed.
4. The applicant has, no doubt, taken the preliminary steps towards lodging appeal. I note too that he moved fairly quicklyafter the impugned orders were made, to file notice of appeal, to file the instant application, and to request for typed and certified copies of the proceedings. He is, no doubt, serious and keen on appealing. He is entitled to his day at the Court of Appeal, for a second opinion on the matters in controversy. It is logical that the subject matter be preserved pending appeal. Consequently, I shall grant the orders sought in the application dated October 23, 2020.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 23RD DAY OF SEPTEMBER 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Manyoni, instructed by Momanyi Manyoni & Company, Advocates for the applicant.Mr. Ondieki, instructed by Gichaba Ondieki & Company, Advocates for the respondent.