[2019] KEHC 3540 (KLR)
The court found that the objection proceedings had already been conclusively determined by a prior ruling of Justice Ombija, which was never appealed or reviewed. The subsequent application for stay pending appeal was therefore without merit and inordinately late, as the applicant had already been given an...
Source-derived case information.
- Citation
- [2019] KEHC 3540 (KLR)
- Parties
- Applicant: Patrick Simiyu Mongeni; Respondent: Robert Barasa Wasike
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 97 of 2000
- Procedural Posture
- Succession Cause / Ruling on Applications for Stay Pending Appeal and for Execution of Transfer
- Outcome
- Application for stay pending appeal dismissed; application to compel execution of transfer documents allowed.
- Judges
- HK Chemitei
- Legal Topics
- Probate and Administration, Confirmation of Grant, Objection Proceedings, Transfer of Land, Execution of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Simiyu Mongeni
Applicant
Robert Barasa Wasike
Respondent
Procedural Posture
Succession Cause / Ruling on Applications for Stay Pending Appeal and for Execution of Transfer
Legal Issues
- 1 Whether the application for stay pending appeal should be granted after dismissal of objection proceedings.
- 2 Whether the administrator should be compelled to sign transfer documents or the Deputy Registrar should execute them in default.
Ratio Decidendi
The court found that the objection proceedings had already been conclusively determined by a prior ruling of Justice Ombija, which was never appealed or reviewed. The subsequent application for stay pending appeal was therefore without merit and inordinately late, as the applicant had already been given an opportunity to challenge the distribution but failed to do so in time. The respondent was entitled to have the transfer documents executed in his favor as per the confirmed grant. The court held that the interests of justice required the estate to be finalized and the respondent to receive his portion, and that the applicant's actions amounted to delaying tactics. Accordingly, the...
Court Disposition
Application for stay pending appeal dismissed; application to compel execution of transfer documents allowed.
Orders
- The application dated 12th June, 2019 for stay pending appeal is dismissed.
- The application dated 21st May, 2019 to compel execution of transfer documents is allowed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 97 OF 2000
IN THE ESTATE OF THE LATE MONGENI WEPUKHULU (DECEASED)
BETWEEN
PATRICK SIMIYU MONGENI ..........................PETITIONER/APPLICANT
VERSES
ROBERT BARASA WASIKE....................................................RESPONDENT
RULING
1. This court on 1st April, 2019 gave directions that the objection proceedings dated 15th March, 2017 be heard by way of oral evidence. Midway the cross-examination of the Petitioner/Applicant PATRICK SIMIYU MONGENI it occurred to the court that Hon. Ombija J (as he then was) on 1st July, 2010 had made a ruling regarding the estate which was later confirmed as per the grant dated 18th October, 2018 in which the suit parcel of land namely TRANS NZOIA / SINYERERE/368 was dealt with.
2. From the proceedings on record, there was no appeal or review against the said ruling by any of the parties. This court therefore suo moto struck out the objection proceedings on the 14th May 2019.
3. The Respondent ROBERT BARASA WASIKE file the application dated 21st of May, 2019 in which he sought to compel the administrator PATRICK SIMIYU MONGENI to sign the transfer documents so that he could have his title. He also prayed in the alternative that the Deputy Registrar to execute the same in the event that the administrator refuses.
4. The Respondent then vide his replying affidavit dated 11th June, 2019 has argued that he has not refused to sign the transfer documents but he is not happy the way his objection proceedings was dismissed. He has instead file a motion dated 12th June, 2019 in which he seeks to appeal against the decision dismissing the objection proceedings.
5. He said that he was not happy with the orders giving the portion of the land to the Respondent. In short he wanted the objection proceedings to go through the full haul.
6. The Respondent vide the replying affidavit dated 19th June, 2019 has argued that the same is purely a waste of time since he did not appeal against the ruling mentioned above of Justice Ombija.
7. The court has seen and considered the application for stay pending appeal against the history of this matter. Whereas it is true that the Applicant has a right of appeal, in this case I find that to grant him stay pending appeal militates against the interest of the Respondent.
8. It is clear that the decision of Ombija J was never appealed against. The objection proceedings which this court halted were based on the fact that what it had been requested to adjudicate over had been decided 9 years ago. To proceed with it would have been sitting as an appellate court over the same. The respondent had been given the portion of the estate rightfully by a legal process.
9. Consequently I do not find any merit in the application dated 12th June, 2019 and dismiss it for being inordinately late in the day. Nothing stops the applicant from proceeding with the appeal seeing that he has already filed a notice of appeal.
10. On the other hand the application dated 21st of May, 2019 is allowed. The Respondent is hereby granted 14 days from the date herein to sign the transfer forms and in default the Deputy Registrar of this court be at liberty to sign the same.
11. Each party shall meet their respective costs.
Dated signed and delivered in open court at Kitale this 23rd day of July 2019.
___________________
H K CHEMITEI
JUDGE
23/7/19
In the presence of;-
Applicant – present
Bororio for the Respodnent
Court Assistant -Kirong
Ruling read in open court.