[2010] KEHC 2134 (KLR)
The court found that the applicant failed to demonstrate that he would suffer irreparable harm or that the appeal would be rendered nugatory if the stay was not granted. The applicant did not provide evidence that the respondent would dispose of the suit land before the appeal is determined, and it was established...
Source-derived case information.
- Citation
- [2010] KEHC 2134 (KLR)
- Parties
- Respondent: Mary Kimoi Sang; Applicant: Charles K. Kandie
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 475 of 1998
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Appeal Procedure, Succession Disputes, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kimoi Sang
Respondent
Charles K. Kandie
Applicant
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 pending appeal.
- 2 Whether refusal to grant stay would render the intended appeal nugatory.
- 3 Whether the applicant would suffer irreparable harm if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to demonstrate that he would suffer irreparable harm or that the appeal would be rendered nugatory if the stay was not granted. The applicant did not provide evidence that the respondent would dispose of the suit land before the appeal is determined, and it was established that the applicant has access to other land. The court concluded that the application for stay of execution lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Succession Cause 475 of 1998
IN THE MATTER OF THE ESTATE OF KIPSANG KANDIE (DECEASED)
MARY KIMOI SANG...................................................................PETITIONER
VERSUS
CHARLES K. KANDIE..........................................................RESPONDENT
RULING
In my judgment of 27th April 2010, I decreed the piece of land known as Title No. Baingo/Ravine/102/107 (the suit land) to Mary Kimoi Sang (the respondent) the window of the deceased in this cause. Being dissatisfied with that decision Charles K. Kandie, one of the objectors whom I will hereinafter refer to as the applicant, has filed a notice of appeal evincing his intention to appeal to the Court Appeal against my decision. On 20th may 2010 he filed an application under Section 47 of the Law of Succession Actand Rules 49and73 of the Probate and Administration Rules and sought a stay of execution pending the determination of his intended appeal. He claims if stay is not granted he will be evicted from the suit land and thus lose his home of twenty seven years.
As I said in my impugned judgment, the applicant and his brother Francis Kandie who also testified in this cause conceded that they did not pay a penny for the suit land. The respondent’s late husband solely paid for it. They stake their claim to the suit land on its original registration in their late father’s name. After their father’s death they allegedly allowed the piece of land to be registered in the name of their late brother in trust for them. Other than their word, there was no independent evidence to support that claim. As the objectors were at that time adults I found that incredible.
It is not in dispute that John Kandie, one of the deceased’s brothers, did not contest the respondent’s claim to the suit land. At the request of the respondent, he voluntarily vacated the suit land and did not participate in these proceedings. The applicant’s other brother Francis Kandie, having not filed a notice of appeal, has thrown in the towel. So it is only the applicant who is persisting on continuing to occupy the suit land. It is on record that Francis Kandie conceded in cross examination that the deceased’s brothers have another piece of land elsewhere. It is therefore false for the applicant to claim that he will be rendered destitute if stay is not granted.
The applicant has not claimed that the respondent is likely to dispose of the suit land before his intended appeal is determined. If his appeal is allowed he will get his portion of the suit land. So his appeal will not be rendered nugatory.
For these reasons I find no merit in this application and I accordingly dismiss it with costs.
DATED and DELIVERED at Nakuru this 8th day of July 2010.
D. K. MARAGA
JUDGE.