[2019] KEHC 9524 (KLR)
The court found that the applicant had not filed the intended appeal within the prescribed period and had not demonstrated any steps taken towards lodging an appeal or obtaining proceedings. The court held that it could not assume the applicant would pursue the appeal in the future, especially since two months had...
Source-derived case information.
- Citation
- [2019] KEHC 9524 (KLR)
- Parties
- Respondent: Tabitha Njiru N’Ringera; Applicant: Kaburu M’Mbutura
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 196 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Stay of Execution and Inhibition Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Probate and Administration, Stay of Execution, Inhibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Njiru N’Ringera
Respondent
Kaburu M’Mbutura
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Stay of Execution and Inhibition Pending Intended Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the ruling delivered on 29th November 2018 pending appeal.
- 2 Whether an order of inhibition restraining dealings on LR Abothuguchi/Mariene/104 should issue pending hearing and determination of an intended appeal.
Ratio Decidendi
The court found that the applicant had not filed the intended appeal within the prescribed period and had not demonstrated any steps taken towards lodging an appeal or obtaining proceedings. The court held that it could not assume the applicant would pursue the appeal in the future, especially since two months had lapsed since the ruling and no notice of appeal had been filed. The court further observed that the application appeared to be a tactic to delay the respondent from enjoying the fruits of the judgment. Consequently, the application for stay of execution and inhibition was found to be without merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 15th January 2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 196 OF 2013
IN THE MATTER OF THE ESTATE OF M’MBUTURA M’TWANTHUKU - DCD
TABITHA NJIRU N’RINGERA............................................PETITONER/RESPONDENT
VERSUS
KABURU M’MBUTURA............................................................APPLICANT/OBJECTOR
RULING
By an application dated 15th January 2019 Tabitha Njiru M’Ringera/Petitioner herein seeksfor an order that stay of execution of ruling deliverdd on 29th November 2018 be granted.
It was also her prayer that an order of inhibition restrating dealings on LR Abothuguchi/Mariene/104 do issue pending hearing and determination of an intended appeal. The application was supported by affidavit of Tabitha Njiru M’Rinera and the grounds on the face of the application.
The Respondent Kaburu M’Mbutura filed a Replying affidavit in opposition to the application sworn on 28th January 2019.
Directions were taken that application be canvassed by way of written submissions but none has so far been filed. The applicant has not filed the intended appeal and this court can’t assume that the intention will ever be executed in the future. After all the applicant had 30 days from 29th November 2018 and 2 months have lapsed since and there is no indication notice of Appeal was filed in the Court of Appeal or that an application was made for supply of proceedings herein.
This matter was filed in 2010 and canvassed by viva voce evidence and the application herein is seen by the court as a ploy to delay the winning party from enjoying his award. The application dated 15th January 2019 has no merit and same is dismissed with costs to the Respondents.
HON. A.ONG’INJO
JUDGE
RULING DELIVERED, SIGNED AND DATED THIS 26TH DAY OF FEBRUARY 2019.
HON. A.ONG’INJO
JUDGE
IN THE PRESENCE OF:
C/A:-
PETITONER/RESPONDENT:- Mr Gikunda Anampiu Advocate – N/A
APPLICANT/OBJECTOR:- Mr Ngugi Advocate holding brief for Ngunjiri for applicant
HON. A.ONG’INJO
JUDGE