[2015] KEHC 2088 (KLR)
The court found that the applicant failed to provide evidence of the existence of Thika CMC ELC No. 31 of 2014, as no pleadings or documents relating to the alleged suit were attached to the supporting affidavits. Without proof of the pending suit, the court could not grant a stay of proceedings or restraining...
Source-derived case information.
- Citation
- [2015] KEHC 2088 (KLR)
- Parties
- Applicant: Jackson Kamau Nduati; Respondent: Administrators of the Estate of Nduati Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 50 of 1987
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Stay of Proceedings
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Stay of Proceedings, Confirmation of Grant, Vesting of Property, Outstanding Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kamau Nduati
Applicant
Administrators of the Estate of Nduati Kamau
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Stay of Proceedings
Legal Issues
- 1 Whether the court should stay proceedings in the succession cause pending determination of Thika CMC ELC No. 31 of 2014.
- 2 Whether the applicant is entitled to orders restraining activities on Loc. 16/Kigoro/1735.
- 3 Whether the existence of a pending suit at Thika Law Courts has been established sufficiently to warrant a stay.
Ratio Decidendi
The court found that the applicant failed to provide evidence of the existence of Thika CMC ELC No. 31 of 2014, as no pleadings or documents relating to the alleged suit were attached to the supporting affidavits. Without proof of the pending suit, the court could not grant a stay of proceedings or restraining orders as requested. The court emphasized that orders cannot be issued on the basis of unsubstantiated claims. Consequently, the application was found to be without merit and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application dated 3rd October 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 50 OF 1987
IN THE MATTER OF THE ESTATE OF NDUATI KAMAU (DECEASED)
RULING
The Summons for determination is dated 3rd October 2014. It seeks in the main stay of proceedings in this cause, especially the application dated 23rd July 2014, pending hearing and determination of Thika CMC ELC No. 31 of 2014. There is also a prayer for orders to restrain certain activities on Loc. 16/Kigoro/1735.
It is brought at the instance of Jackson Kamau Nduati, who swore an affidavit in support on 3rd October 2014. He describes himself as “an applicant” of the estate of the deceased. He explains that the application dated 23rd July 2014 is brought on behalf of a school called Kiangigi Nursery School, which had acquired a portion or the whole of Loc 16/Kigoro/1735 from the deceased in 1965 for a sum of Kshs. 7000. 00. The purchase price was not paid in full, for there is a balance of Kshs. 2,290. 00 outstanding since 1979. At confirmation, the property was confirmed in favour of the school, but the estate wants the vesting of the property to the school delayed until the full purchase price is paid.
The response to the application was in the form of grounds of opposition dated 15th November 2014. The administrators are accused of having acted contrary to the confirmation orders, even though they have not challenged the said orders in any way. They are also accused of perpetrating fraud.
The application was argued before me on 16th December 2014 by Mr. Mathenge. Mr. Nguring’a replied. Both gave vent to the arguments placed before me in the papers filed in court.
Although I am being asked to stay proceedings with respect to the application dated 23rd July 2014 and to stop activities on the ground on Loc. 16/Kigoro/1735 on account of a suit pending at the Thika Law Courts, being Thika CMC LC No. 31 of 2014, I have no evidence before me that the said suit exists. The pleadings in respect of the said suit have not been attached to the affidavits sworn in support of the instant application. I cannot therefore order stay of proceedings on account of a suit whose existence has not been established.
The application dated 3rd October 2014 is without merit. It is hereby dismissed with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 2nd DAY OF October, 2015.
W. MUSYOKA
JUDGE