[2024] KEHC 15399 (KLR)
The court found that since the Ruling of the Taxing Master dated 9th November 2021 was set aside for applying the incorrect law, and the application dated 6th April 2017 was remitted for fresh hearing and determination, it would be premature and prejudicial to proceed with the Amended Statement of Particulars and...
Source-derived case information.
- Citation
- [2024] KEHC 15399 (KLR)
- Parties
- Applicant: Col. (Rtd) Farooq Asif Butt; Respondent: Jamesshed Ahmmed Butt; Respondent: Fehmida Begium Butt
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 693 of 2009
- Procedural Posture
- Succession Cause / Ruling on Stay of Determination Pending Taxation Review
- Outcome
- Stay of determination of Amended Statement of Particulars and Terms of Sale granted pending outcome of taxation application.
- Judges
- EKO Ogola
- Legal Topics
- Estate Administration, Stay of Proceedings, Taxation of Costs
- 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
Col. (Rtd) Farooq Asif Butt
Applicant
Jamesshed Ahmmed Butt
Respondent
Fehmida Begium Butt
Respondent
Procedural Posture
Succession Cause / Ruling on Stay of Determination Pending Taxation Review
Legal Issues
- 1 Whether the Amended Statement of Particulars and Terms of Sale should be determined before the pending appeal on taxation is heard and determined.
- 2 Whether a stay of proceedings is warranted pending the outcome of the application before the Taxing Master.
Ratio Decidendi
The court found that since the Ruling of the Taxing Master dated 9th November 2021 was set aside for applying the incorrect law, and the application dated 6th April 2017 was remitted for fresh hearing and determination, it would be premature and prejudicial to proceed with the Amended Statement of Particulars and Terms of Sale. The court therefore stayed the determination of the sale until the Taxing Master has heard and determined the pending application, to avoid prejudice and ensure the proper administration of the estate.
Court Disposition
Stay of determination of Amended Statement of Particulars and Terms of Sale granted pending outcome of taxation application.
Orders
- Determination of the Amended Statement of Particulars and Terms of Sale dated 15th December 2021 is stayed until the Taxing Master hears and determines the application dated 6th April 2017.
Full Case Text
Judgment text and source record
26 paragraphs
In re Estate of Khurshid Ahmed Butt (Deceased) (Succession Cause 693 of 2009) [2024] KEHC 15399 (KLR) (Family) (5 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15399 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 693 of 2009
EKO Ogola, J
December 5, 2024
IN THE MATTER OF THE ESTATE OF KHURSHID AHMED BUTT (DECEASED)
Between
Col. (Rtd) Farooq Asif Butt
Applicant
and
Jamesshed Ahmmed Butt
1st Respondent
Fehmida Begium Butt
2nd Respondent
Ruling
1. What is before this court for determination is an Amended Statement of Particulars and Terms of Sale dated 15th December 2021. The respondents are the registered proprietors of Land Parcel Number MOMBASA M.S. /BLOCK 1/ 416, Likoni. The applicant stated that this Court on 22nd May 2013 issued an order for the Attachment and Sale of the property.
2. In response, Mohammed Bulle Ahmed, counsel for the respondents, filed a Replying Affidavit where he deposed that there is an appeal before this court on the Ruling awarding interest on costs. The appeal is P&A Reference Application No. E.215 of 2021, and that there is an application for a stay of these proceedings pending the determination of the said appeal. According to counsel, the respondent would be greatly prejudiced and suffer substantial loss if the Amended Statement of particular and proposed terms of sale is determined before the appeal is heard and determined.
3. Parties were directed to file written submissions to argue their case. I have read and considered these rival submissions.
Determination 4. There is an application dated 19th November 2021 in P&A Reference Application No. E215 of 2021. The application sought a stay of the Ruling of the Taxing Master dated 9th November 2021; for the said Ruling to be set aside and for the application dated 6th April 2017 to be allowed; in the alternative to prayer (2), that the application dated 6th April 2017 be referred back to the taxing master for determination.
5. This court considered the said application. By a Ruling of this Court dated 5th December 2024, this court set aside the Ruling of the Taxing Master dated 9th November 2021 on the grounds that the Taxing master used an incorrect law in determining the application dated 6th April 2017. Consequently, the application dated 6th April 2017 was ordered to be returned back to the Taxing matter for a fresh hearing and determination.
6. From the foregoing, I stay the determination of the Amended Statement of Particulars and Terms of Sale dated 15th December 2021 until the Taxing Master hears and determines the application dated 6th April 2017.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI ON THIS 5TH DAY OF DECEMBER 2024. ...........................................................E.K. OGOLAJUDGEIn the presence of:Mr. Andati for the Applicant.Mr. Kaya h/b for Mr. Bulle for the Respondents.M/s Gisiele M Court Assistant.