[2021] KEHC 1176 (KLR)
The court found that the applicant had demonstrated sufficient steps towards appealing the impugned orders, including filing a notice of appeal and requesting certified copies of proceedings. Although there was no evidence of the actual appeal being filed, the court was satisfied that the applicant was actively...
Source-derived case information.
- Citation
- [2021] KEHC 1176 (KLR)
- Parties
- Applicant: John Oloo Odeny; Respondent: William Masara Ooko
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 341 of 2001
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal granted.
- Judges
- DN Musyoka
- Legal Topics
- Succession Proceedings, Confirmation of Grant, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Oloo Odeny
Applicant
William Masara Ooko
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 and orders delivered on 22nd May 2020 pending appeal.
- 2 Whether the applicant was denied a fair hearing due to lack of notice.
- 3 Whether preserving the status quo is necessary to avoid rendering the intended appeal nugatory.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient steps towards appealing the impugned orders, including filing a notice of appeal and requesting certified copies of proceedings. Although there was no evidence of the actual appeal being filed, the court was satisfied that the applicant was actively pursuing the appellate process. To ensure that the intended appeal would not be rendered nugatory and to uphold the applicant's right to be heard by a higher court, the court determined that it was fair and just to preserve the status quo by granting a stay of execution. The court thus allowed the application in terms of the prayer for stay, with costs to be in the cause.
Court Disposition
Application for stay of execution pending appeal granted.
Orders
- Orders in terms of prayer 4 of the Chamber Summons dated 23rd December 2020 are granted, staying execution of the ruling and orders of 22nd May 2020 pending appeal.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 341 OF 2001
IN THE MATTER OF THE ESTATE OF WILLIAM ODENY MASARA (DECEASED)
RULING
1. The application for determination is dated 23rd December 2020. It seeks stay of execution of ruling delivered on 22nd May 2020 and the orders and certificate of confirmation of grant pending appeal.
2. The background is that this court on 22nd May 2020, allowed an application dated 23rd April 2015, which had sought that the name of Francis Kaniga Odeny be substituted with that of William Masara Ooko, on the basis that the same referred to the same individual. The applicant, John Oloo Odeny, is aggrieved by that order. He says the ruling was delivered without notice to him, and that he has filed an appeal against the ruling. He avers that the respondent had extracted the order, and he was carrying it into effect, to his detriment.
3. There is a reply to the application, by William Masara Ooko, the respondent. He avers that a hearing notice was served with respect to the application that led up to the making of the impugned orders. It is said that the applicant did not reply to the application, and had acted as if he had lost interest in the matter.
4. Interim orders were made on the application on 31st December 2020
5. Directions were given on 24th March 2021, for canvassing of the application by way of written submissions. Both sides have filed written summons, complete with judicial authorities in support of their respective positions. I have read through the same and noted the arguments made.
6. I note that the applicant filed a notice of appeal, dated 27th May 2020, and served it on the respondent. He also requested for and obtained certified copies of the proceedings and the ruling. There is no evidence that he eventually filed appeal, but it is clear that he has done all the preliminaries.
7. Each party is entitled to their day in court. The applicant is aggrieved by the impugned orders. He has a right to get a second opinion from a higher court. There is sufficient proof that he is headed for the Court of Appeal. So that his intended appeal is not rendered nugatory, it would only be fair and just that the status quo be preserved.
8. Consequently, I shall grant orders in terms of prayer 4 of the Chamber Summons dated 23rd December 2020. Costs shall be in the cause. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGATHIS10TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE