[2021] KEHC 12749 (KLR)
The High Court held that after granting a stay of execution of its orders pending appeal, its jurisdiction to make further substantive orders regarding the estate was suspended. The dispute, including any interlocutory relief sought, now falls within the exclusive jurisdiction of the Court of Appeal. The applicant,...
Source-derived case information.
- Citation
- [2021] KEHC 12749 (KLR)
- Parties
- Applicant: Daniel Gatenjwa Thuo; Respondent: Mary Karanja Mburu; Respondent: Rose Muthoni; Respondent: Edward Ngugi Makena; Respondent: Georgina Njeri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 828 of 1994
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Estate Administration, Interlocutory Injunctions, Stay of Execution, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Gatenjwa Thuo
Applicant
Mary Karanja Mburu
Respondent
Rose Muthoni
Respondent
Edward Ngugi Makena
Respondent
Georgina Njeri
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant further orders regarding the estate after a stay of execution has been granted pending appeal.
- 2 Whether the applicant is entitled to injunctive relief restraining the respondents from dealing with the disputed land pending appeal.
Ratio Decidendi
The High Court held that after granting a stay of execution of its orders pending appeal, its jurisdiction to make further substantive orders regarding the estate was suspended. The dispute, including any interlocutory relief sought, now falls within the exclusive jurisdiction of the Court of Appeal. The applicant, having invoked the appellate process and obtained a stay, cannot seek further relief from the High Court in relation to the same subject matter. Therefore, the application for injunctive relief was dismissed for want of jurisdiction.
Court Disposition
application dismissed with costs
Orders
- The application dated 15th October 2019 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 828 OF 1994
IN THE MATTER OF THE ESTATE OF WILFRED THUO NGUGI (DECEASED)
DANIEL GATENJWA THUO................................................................................APPLICANT
VERSUS
MARY KARANJA MBURU........................................................................1ST RESPONDENT
ROSE MUTHONI........................................................................................2ND RESPONDENT
EDWARD NGUGI MAKENA....................................................................3RD RESPONDENT
GEORGINA NJERI....................................................................................4TH RESPONDENT
RULING
1. This dispute is over land parcel Dagoretti/Uthiru/443 which the court ordered on 20th January 2017 that it be surveyed and subdivided equally among the five children of the deceased Wilfred Thuo Ngugi. The applicant Daniel Gatenjwa Thuo is one of the children of the deceased, and an administrator of the estate of the deceased. He was dissatisfied with the decision of the court and filed an appeal to the Court of Appeal. The appeal is pending. Following application, on 29th January 2019 this court ordered the stay of the execution of the orders of 20th January 2017 pending the hearing and determination of the appeal.
2. On 15th October 2019 the applicant filed an application dated the same day seeking to have the respondents Anthony Karanja Mburu, Rose Muthoni, Edward Ngugi Makena and Georgina Njeri restrained from leasing, letting, building on, developing or blocking him from accessing the parcel of land pending the hearing and determination of the appeal. The respondents are children of the applicant’s late sister Grace Wanjiru Thuo. He stated that he has always occupied this land, and constructed rental houses next to his house. The respondents have allegedly invaded the land, taken possession of a large portion of it and put up a permanent building on one portion, rented another portion to some people who were putting up high rise apartments thereon and had blocked him from accessing the parcel.
3. The respondents’ case was that their late mother had settled them on this land on which they had put up respective homesteads. Their mother had put up rental houses which had tenants. Instead of the applicant concluding the administration of the deceased, he had extensively developed the land by putting up rental houses.
4. This court distributed the estate of the deceased by among other things, asking that parcel Dagoretti/Uthiri/443 be surveyed and shared equally among the deceased’s children. The children include the applicant and the late mother of the respondents. The deceased had five children. The applicant was aggrieved and has appealed to the Court of Appeal. He successfully asked this court to stay the sharing until the Court of Appeal had determined the appeal. I find that, after the order of stay, this court’s jurisdiction to further deal with the dispute ended. If the applicant seeks any orders over the estate pending the hearing and determination of the appeal, he has to approach the Court of Appeal which is now seized of the dispute.
5. This dispute now belongs to the Court of Appeal. The applicant cannot be allowed to litigate in both courts at the same time.
6. That being the case, I dismiss the application with costs.
DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH 2021.
A.O. MUCHELULE
JUDGE