[2010] KEHC 2144 (KLR)
The court found that the applicant's claim of potential deprivation of livelihood was not substantiated, as he already had a share of the estate, including 2.5 acres of the disputed land and a portion of the 12 acres decreed to his family. The court determined that there was no merit in the application for stay of...
Source-derived case information.
- Citation
- [2010] KEHC 2144 (KLR)
- Parties
- Applicant: John Maina Chege; Respondent: Kamau Komu Mukera
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 696 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs; limited preservation order granted
- Legal Topics
- Succession Estates, Stay of Execution, Distribution of Estate, Appeals in Succession, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maina Chege
Applicant
Kamau Komu Mukera
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the determination of the intended appeal in a succession matter.
- 2 Whether the applicant will suffer irreparable harm if the stay is not granted.
Ratio Decidendi
The court found that the applicant's claim of potential deprivation of livelihood was not substantiated, as he already had a share of the estate, including 2.5 acres of the disputed land and a portion of the 12 acres decreed to his family. The court determined that there was no merit in the application for stay of execution. However, to ensure that the intended appeal is not rendered nugatory, the court directed that the issuance of title deeds for the subdivisions of the disputed 5 acres be held in abeyance until the appeal is heard and determined. The application for stay was otherwise dismissed with costs to the respondent.
Court Disposition
application dismissed with costs; limited preservation order granted
Orders
- The application for stay of execution is dismissed with costs.
- The issuance of title deeds to the applicant and respondent for the subdivisions of the 5 acres disputed portion is to be held in abeyance until the objector's appeal to the Court of Appeal is heard and determined.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Succession Cause 696 of 2006
IN THE MATTER OF THE ESTATE OF KIMANI NYAITUGA (DECEASED)
RULING
In my judgment of 13th May 2010, I distributed the estate of the late Kamani Nyaituga (the deceased). John Maina Chege the objector, being dissatisfied with that distribution has filed a notice of appeal evincing his intention to appeal against it. He has now applied under Section 47 of the Law of Succession Act and Rules 49and 73 of the Probate and Administration Rules for stay of execution pending the filing and determination of his intended appeal.
The application is based on the ground that if stay is not granted the objector and his family will be dispossessed of the 2. 5 acres portion they have and are occupying and thus be denied a source of their livelihood.
The application is strongly opposed by Kamau Komu Mukera (the respondent), to whom I decreed the 2. 5 acres portion which the objector wishes to continue occupying.
I have considered the application. It is not true as the objector claims that if stay is not granted he together with his family will be deprived of a source of their livelihood. Besides his share of the 12 acres portion decreed to his family, he has 2. 5 acres of the disputed piece of land. In the circumstances I find no merit in his application and I accordingly dismiss it with costs.
So that the objectors appeal is not rendered nugatory, I direct that the issue of title deeds to the objector and the respondent for the subdivisions of the 5 acres disputed portion be held in abeyance until the objectors appeal to the Court of Appeal is heard and determined. Save for this direction as I have said, I dismiss the objector’s application with costs.
DATED and DELIVERED this 6th day of July, 2010.
D. K. MARAGA
JUDGE.