[2019] KEHC 733 (KLR)
The court held that, despite the applicant having cited the wrong procedural provisions, the overriding objective is to do justice between the parties. The court found that there was now a real threat of execution, as the respondent had engaged a surveyor to subdivide the estate, which could irreversibly alter the...
Source-derived case information.
- Citation
- [2019] KEHC 733 (KLR)
- Parties
- Applicant: Cecilia Wangari Thuo; Respondent: Philis Wangui Kiburi
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 24 of 2017
- Procedural Posture
- Stay Application / Interim Application for Stay Pending Hearing of Application Inter Partes
- Outcome
- Interim stay of execution granted pending hearing of application inter-partes.
- Judges
- RPV Wendoh
- Legal Topics
- Succession Estates, Interim Stay Orders, Status Quo Preservation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wangari Thuo
Applicant
Philis Wangui Kiburi
Respondent
Procedural Posture
Stay Application / Interim Application for Stay Pending Hearing of Application Inter Partes
Legal Issues
- 1 Whether an interim stay of execution should be granted pending the hearing of the application inter-partes.
- 2 Whether the invocation of the wrong procedural provisions bars the grant of interim relief in succession matters.
Ratio Decidendi
The court held that, despite the applicant having cited the wrong procedural provisions, the overriding objective is to do justice between the parties. The court found that there was now a real threat of execution, as the respondent had engaged a surveyor to subdivide the estate, which could irreversibly alter the subject matter before the application for stay is heard inter-partes. To prevent the substratum of the dispute from being lost and to maintain the status quo, the court granted an interim stay of execution of its judgment dated 19/7/2019 pending the hearing of the application inter-partes. The court emphasized that the respondent would not suffer prejudice by waiting for two...
Court Disposition
Interim stay of execution granted pending hearing of application inter-partes.
Orders
- An interim order of stay of this court’s judgment dated 19/7/2019 is granted pending hearing of the application inter-partes on 4/3/2020.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
SUCCESSION CAUSE NO.24 OF 2017
IN THE MATTER OF THE ESTATE OF MARGARET NJAMBI THUO (DECEASED)
CECILIA WANGARI THUO.....................................................OBJECTOR/APPLICANT
V E R S U S
PHILIS WANGUI KIBURI.................................................PETITIONER/RESPONSENT
R U L I N G
By the Notice of Motion dated 9/9/2019, the Objector/Applicant, Cecilia Wangari Thuo seeks the following prayers before the court: That there be stay of execution of the Hon. Court’s Judgment/Decree dated 19/7/2019 pending the hearing and determination of the intended appeal preferred against the court’s judgment. When the application was brought before the Judge under Certificate of Urgency, no interim orders were granted. The application is scheduled for hearing on 4/3/2020.
The applicant filed another Notice of Motion dated 5/12/2019 seeking a stay of execution pending the hearing and determination of the application inter-partes. The same was not issued because there was no threat of execution.
On 11/12/2019, the applicant’s counsel filed another certificate to the effect that the respondent had engaged a surveyor who was due to carry out survey work and subdivision on 18/12/2019, that is, today.
The application was opposed by Mr. Maina Kairu who submitted that the application is an abuse of the court process because twice, the court had not granted a temporary order of stay.
He also argued that the application is fatally defective having been brought under Order 42, 22 and 51 of Civil Procedure Rules and Section 3A Civil Procedure Act which are not applicable to an application under the Law of Succession Act Cap.160 LoK and that the applicant should await the hearing after the application on merit.
I have considered the application and the response there to. When the applicant first came to court, there was no threat of execution. However, the same has now arisen. Mr. Murimi submitted that the respondent has sought execution twice, on 2/12/2019 and now on 18/12/2019. The subject matter herein is the estate of the deceased, a mother to the objector and respondent. If subdivision is carried out now, before the hearing of the application inter-partes, then the substratum will disappear.
Even though counsel invoked the wrong provision of law, the court in this instance must do justice to the parties by maintaining the status quo till the application for stay is heard and determined. The respondent can wait for 2 more months and will not suffer any prejudice. In the end, I grant an interim order of stay of this court’s judgment dated 19/7/2019 pending hearing of the application inter-partes on 4/3/2020.
Costs to be in the cause.
Dated, Signed and Delivered at NYAHURURU this 18thday ofDecember,2019.
...........................
R.P.V. Wendoh
JUDGE
PRESENT:
Mr. Murimi for objector
Mr. Maina Kairu for respondent
Soi- Court Assistant