[2017] KEHC 5688 (KLR)
The court found that the applicant failed to satisfy the requirements for a stay of execution pending appeal. Specifically, the application was brought after an unreasonable delay, as both the notice of appeal and the request for proceedings were filed approximately a year after the confirmation orders without leave...
Source-derived case information.
- Citation
- [2017] KEHC 5688 (KLR)
- Parties
- Applicant: Grace Wanjiru Waruru; Respondent: George Kairu Waruru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2525 of 1997
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Confirmation of Grant, Appeals in Succession, Delay in Filing, Substantial Loss, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wanjiru Waruru
Applicant
George Kairu Waruru
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 confirmation orders pending appeal.
- 2 Whether the application was brought without unreasonable delay.
- 3 Whether the applicant demonstrated substantial loss and willingness to provide security for costs.
Ratio Decidendi
The court found that the applicant failed to satisfy the requirements for a stay of execution pending appeal. Specifically, the application was brought after an unreasonable delay, as both the notice of appeal and the request for proceedings were filed approximately a year after the confirmation orders without leave or extension. Furthermore, the applicant did not demonstrate in her affidavit that she would suffer substantial loss if the stay was denied, nor did she indicate willingness to provide security for costs. Consequently, the court held that the applicant had not made out a case for the grant of stay and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
- The cause is transferred to the High Court of Kenya at Kiambu for disposal of any pending business.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2525 OF 1997
IN THE MATTER OF THE ESTATE OF WARURU KAIRU (DECEASED)
RULING
1. The summons dated 16th October 2015 seeks stay of execution of the implementation of the certificate of confirmation arising from the confirmation orders made on 25th April 2014 pending an appeal to be filed at the Court of Appeal. It is brought at the instance of Grace Wanjiru Waruru, who states that she was aggrieved by the orders made on 25th April 2014. She says that she has applied for certified copies of the proceedings and ruling and filed a notice of appeal. There is copy of a letter dated 25th May 2015 addressed to the court asking for certified copies of the proceedings and ruling. There is also copy of a notice of appeal dated 19th May 2015, and filed herein on 21st May 2015.
2. The reply to the application is by George Kairu Waruru, the administrator, who swore an affidavit on 7th December 2015. He avers that the said application is founded on the wrong provisions of the law. He also states that the court has no jurisdiction to grant stay of execution pending appeal. He argues that the application is brought after considerable delay which is unreasonable.
3. It was directed that the said application be disposed of by way of written submissions. The parties have filed their respective submissions. I have read through the said submissions and noted the arguments made therein.
4. The law relating to applying for stay of execution pending appeal is that the same ought to be brought without unreasonable delay, it must be demonstrated that the applicant would suffer substantial loss and security has been furnished by the applicant. The law requires that the notice of appeal ought to be filed within seven days. The notice before me was a year after, and without leave of court or extension of the time for filing the same. I note too that the request for copies of the proceedings came also a year after the orders were made. It cannot be said that the same was filed after a delay that was not reasonable. On substantial loss, I note that the applicant has not deposed in her affidavit that she would suffer substantial loss should the orders be denied. There is no effort to demonstrate the nature of the substantial loss she would suffer as a consequence. She has also not indicated her willingness to provide security for costs.
5. In view of the above, I am not satisfied that the applicant has made out a case for grant of stay of execution of the confirmation orders pending appeal. The application is for dismissal and I do hereby dismiss the same for costs.
6. I note that the estate comprises of assets that are not situated within Nairobi; but at Limuru, Gilgil and Nakuru. The family is resident at Limuru, Ngecha. Consequently, I hereby order that the cause herein be transferred to the High Court of Kenya at Kiambu for disposal of any pending business.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE