[2023] KEHC 20114 (KLR)
The court found that the applicants did not seek leave to appeal at the time of judgment delivery, making it necessary to obtain such leave now. The notice of appeal was filed within the requisite time, and the delay in seeking leave was not unreasonable. The court determined that the respondents would not suffer...
Source-derived case information.
- Citation
- [2023] KEHC 20114 (KLR)
- Parties
- Applicant: Vincent Muturi Mwaura & 3 others; Respondent: Virginia Mumbi Kuguru & another
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 486 of 2001
- Procedural Posture
- Succession Cause / Ruling on Application for Stay and Leave to Appeal
- Outcome
- Application allowed with costs to the respondents.
- Judges
- HK Chemitei
- Legal Topics
- Grant of Leave to Appeal, Stay of Execution, Administration of Estates, Appeals in Succession Matters
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Muturi Mwaura & 3 others
Applicant
Virginia Mumbi Kuguru & another
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay and Leave to Appeal
Legal Issues
- 1 Whether the applicants should be granted leave to appeal against the judgment delivered on 14th December 2021.
- 2 Whether a stay of execution of the decree should be granted pending the intended appeal.
- 3 Whether the application for leave and stay was filed late and constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicants did not seek leave to appeal at the time of judgment delivery, making it necessary to obtain such leave now. The notice of appeal was filed within the requisite time, and the delay in seeking leave was not unreasonable. The court determined that the respondents would not suffer substantial harm beyond delay and that, as a family matter, it was important to allow the applicants another chance at the Court of Appeal to reach legal finality. Therefore, the application for stay and leave to appeal was merited and allowed.
Court Disposition
Application allowed with costs to the respondents.
Orders
- Stay of execution of the decree arising out of the judgment delivered on 14th December 2021 is granted pending the hearing and determination of the intended appeal.
- Restrictions to be registered on title number Dundori Mugwathi Block 1/972, Rimuruti Maundu ni Meri /706 and Nyandarua /Milangine /613 pending the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
In re Estate of the Late Charles Kuguru (Deceased) (Succession Cause 486 of 2001) [2023] KEHC 20114 (KLR) (13 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20114 (KLR)
Republic of Kenya
In the High Court at Nakuru
Succession Cause 486 of 2001
HK Chemitei, J
July 13, 2023
IN THE MATTER OF THE ESTATE OF THE LATE CHARLES KUGURU(DECEASED)
Between
Vincent Muturi Mwaura & 3 others
Applicant
and
Virginia Mumbi Kuguru & another
Respondent
Ruling
1. In their amended summons dated November 11, 2022 the applicants pray for the following orders;(a)That there be stay of execution of the decree arising out of the judgement delivered on 14th December 2021 and restrictions be registered on title number Dundori Mugwathi Block 1/972, Rimuruti Maundu ni Meri /706 and Nyandarua /Milangine /613 pending the hearing and determination of the intended appeal(b)The applicants be granted leave to appeal to the court of appeal against the judgement of this court delivered on 14th December 2021. (c)That the Notice of Appeal filed on the 22nd December 2021 be deemed to have been properly filed.(d)Costs be provided for.
2. The application is based on the grounds on the face of the application and the sworn affidavit of Eric Wainaina Muraguri sworn on 11th November 2022.
3. In the application the applicant deposes that they were dissatisfied with the judgement of this court dated 14th December 2021 and that they are seeking to appeal against the same. In line with the authority of Rhoda Wairimu Karanja & Another v. Mary Wangari Karanja & Another (2014) eKLR there was no automatic right of appeal without the leave of the court.
4. He deponed that unless the application is allowed they stand to lose as the respondents will execute and the appeal shall be rendered nugatory. He states that the intended appeal has a good chance of success.
5. In her replying affidavit sworn on 29th November 2022 Virginia Mumbi Kuguru opposed the application on the grounds that the same was filed very late in the day and it was therefore an abuse of the court process. That the same was an afterthought and meant to delay the matter longer.
6. She went on to deny that the applicant had any part in the estate since her mother denied the same and therefore the appeal has no chance of success.
7. The court directed the parties to file written submissions which they complied and the court has perused the same.
8. The applicant contended that unless the application is allowed the appeal shall be rendered nugatory and that the same was not brought late in the day. In any case the leave of the court has to be obtained.
9. The respondents on their part have argued that the said application is a non-starter since it was established that the applicants had no part in the estate. They reiterated that the application was filed late in the day and it ought to be disallowed.
10. The court has perused the application and it is evident that at the time of delivery of the judgement the applicants did not sought the leave of the court to file the appeal. It thus becomes necessary that they must obtain the said leave.
11. Was the application made late in the day.? I do not think so. The notice of appeal from the available court record shows that it was filed within the requisite time. I think the only issue is that the applicants must have realised the necessity of seeking courts leave later in the day and that is why it sought to amend the summons.
12. Do the respondents stand to suffer any loss, harm or damage.? I think to be fair all that they stand to suffer is the conveyancing instruments in their favour being signed to transmit the parcels to them as generally I think they are in physical occupation of the land. Obviously the time factor is another loss they stand to suffer but again an appeal exercise must be allowed as it is a constitutional right.
13. However, taking the totality of the facts herein I think it is necessary that the applicants be granted another chance at the Court of Appeal. Being a family matter, it becomes necessary to reach a finality legally speaking.
14. In the premises I find that there is merit in the application and the same is hereby allowed as prayed with costs to the respondents.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 13TH DAY OF JULY 2023. H K CHEMITEIJUDGE2