[2015] KEHC 464 (KLR)
The application for stay of execution pending appeal cannot be granted because the applicant has neither sought nor obtained leave to appeal as required under the Law of Succession Act and relevant case law. There is no evidence of a pending appeal or that one is likely to be filed soon, as the only indication of...
Source-derived case information.
- Citation
- [2015] KEHC 464 (KLR)
- Parties
- Applicant: Priscilla Mweru Muturi; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1783 of 1993
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Succession Proceedings, Stay of Execution, Leave to Appeal, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Priscilla Mweru Muturi
Applicant
__MISSING__
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the ruling made on 30th January 2015 pending appeal.
- 2 Whether leave to appeal is required and has been obtained under the Law of Succession Act for an appeal to the Court of Appeal from the High Court.
Ratio Decidendi
The application for stay of execution pending appeal cannot be granted because the applicant has neither sought nor obtained leave to appeal as required under the Law of Succession Act and relevant case law. There is no evidence of a pending appeal or that one is likely to be filed soon, as the only indication of intent is an unstamped letter to the Deputy Registrar requesting typed proceedings. Without leave to appeal, the court lacks the basis to grant a stay of execution. The application is therefore without merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application dated 17th February 2015 for stay of execution is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1783 OF 1993
IN THE MATTER OF THE ESTATE OF WANDIRU KABAIKU MBUTHIA
alias WANDIRU KABAIKO MBUTHIA Alias WANDIRU KABAIKU (DECEASED)
RULING
The application dated 17th February 2015 seeks stay of execution of the ruling made herein on 30th January 2015 pending appeal.
It is brought at the instance of Priscilla Mweru Muturi, who indicates that she is dissatisfied with the orders made on 30th January 2015 and desires to appeal against them. She has attached to her affidavit in support of the application copy of a letter dated 12th February 2015 addressed to the Deputy Registrar of the Family Division of the High Court asking for typed copies of the proceedings in the matter.
There are two affidavits of service on record indicating service of the application and hearing notice on the respondent. The respondent has not replied to the application.
When the matter came up for hearing on 15th April 2015, counsel for the applicant did not argue the same, instead he stated that the application was unopposed and left it to me to give orders based on the documents on record.
These are proceedings conducted under the Law of Succession Act, Cap 160, Laws of Kenya. Under the said statute, there are no express provisions for a right of appeal from a decision of the High Court in exercise of its original jurisdiction to the Court of Appeal. The Court of Appeal held in Makhangu vs. Kibwana(1996-1998)1 EA 16, that there is indeed a right of appeal, meaning that such decisions can be appealed against. In Rhoda Wairimu Karanja & another vs. Mary Wangari Karanja & another(2014)eKLR held that as there is no express right of appeal to the Court of Appeal, an appeal to the Court of Appeal from the High Court lies with leave of either the High Court or of the Court of Appeal.
In the matter before me, I note from the record, that the applicant has not given any indication as to whether leave has been granted to appeal the orders of 30th January 2015 in view of what I have stated in paragraph 5 above. The application before me does not pray for such leave, and there is none pending where such leave is sought.
As no leave to appeal has been obtained, or even sought, I do not see the basis upon which I can grant stay of execution of the ruling pending appeal. There is no appeal pending and there is no evidence that one is likely to be filed soon. The only evidence that the applicant evinces an intention to appeal is the letter to the Deputy Registrar dated 12th February 2015, annexture PMM2, asking for typed proceedings. Unfortunately, the alleged letter does not bear a court stamp, and there is therefore no proof that it was even lodged at the registry.
There cannot be any merit in the application dated 17th February 2015 in view of the foregoing. The same is hereby dismissed.
DATED, SIGNED and DELIVERED at NAIROBI this 18TH DAY OF DECEMBER, 2015.
W. MUSYOKA
JUDGE