[2009] KEHC 3948 (KLR)
The court held that since judgment had been delivered in favour of the applicant and the respondent had not obtained a stay of execution, the applicant was entitled to have the judgment executed. The mere filing of an appeal does not prevent execution of a judgment unless a stay is granted. Therefore, to ensure the...
Source-derived case information.
- Citation
- [2009] KEHC 3948 (KLR)
- Parties
- Respondent: Jane Wanjiru Muchiri; Applicant: Phoebe Watetu Muchiri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 94 of 1996
- Procedural Posture
- Succession Cause / Post Judgment Application for Execution
- Outcome
- Application granted.
- Judges
- MM Kasango
- Legal Topics
- Execution of Judgment, Grant of Letters of Administration, Transfer of Land Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wanjiru Muchiri
Respondent
Phoebe Watetu Muchiri
Applicant
Procedural Posture
Succession Cause / Post Judgment Application for Execution
Legal Issues
- 1 Whether the Deputy Registrar should be authorized to execute documents to transfer 7.15 acres of Endarasha scheme No. 61 to the applicant as per the judgment.
- 2 Whether the respondent's filing of an appeal without a stay of execution justifies refusal to effect the judgment.
Ratio Decidendi
The court held that since judgment had been delivered in favour of the applicant and the respondent had not obtained a stay of execution, the applicant was entitled to have the judgment executed. The mere filing of an appeal does not prevent execution of a judgment unless a stay is granted. Therefore, to ensure the applicant enjoys the fruits of her judgment, the Deputy Registrar was authorized to execute all necessary documents to facilitate the transfer of the 7.15 acres of Endarasha scheme No. 61 to the applicant. The court also awarded the applicant costs of the summons.
Court Disposition
Application granted.
Orders
- The Deputy Registrar of the court is authorized to execute all necessary documents to facilitate the transfer of 7.15 acres of Endarasha scheme No. 61 to Phoebe Watetu Muchiri.
- The applicant is awarded costs of the summons dated 19th November 2008.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 94 of 1996
IN THE MATTER OF THE ESTATE OF SOLOMON MUCHIR MACHARIA – DECEASED
JANE WANJIRU MUCHIRI ……….……………………… PETITIONER
Versus
PHOEBE WATETU MUCHIRI ….…………………….….… OBJECTOR
RULING
This court by its judgment dated 15th November 2007 gave the applicant Phoebe Watetu Muchiri 7. 15 acres of Endarasha scheme No. 61. Phoebe Watetu has now brought a summons before court dated 19th November 2008. She seeks for a prayer that the Deputy Registrar of this court do execute all the necessary documents to facilitate the transfer of that land into her name as per the judgment of this court. In her short affidavit in support she stated that the respondent Jane Wanjiru Muchiri filed an appeal against the said judgment and was therefore declining to sign papers to effect the judgment of the court. She stated that it is important for the orders sought to be granted to enable her enjoy the fruits of her judgment. The respondent in her replying affidavit confirmed that she had filed an appeal and had obtained the proceedings and a certificate of delay. The appeal had therefore been lodged at the Court of Appeal. Todate it has not been fixed for hearing. The respondent then stated that no documents had been sent to her which she had declined to sign. In her view however the interest of justice would be served by maintaining status quo. I have considered the arguments for and against the application. Judgment was delivered on 15th November 2007 in favour of the applicant. Even if the respondent has filed an appeal she has not sought stay of execution. For that reason in my view the orders sought by the applicant should be granted to ensure that the judgment of this court is effected. The orders of this court are as follows:-
1. That this court does hereby authorize the Deputy Registrar of this court to execute all necessary documents to facilitate the transfer of 7. 15 acres of Endarasha scheme no. 61 to Phoebe Watetu Muchiri.
2. The applicant is awarded costs of the summons dated 19th November 2008.
Dated and delivered this 10th day of February 2009
MARY KASANGO
JUDGE