[2022] KEHC 12461 (KLR)
The court found that the applicant failed to demonstrate the substantial loss he would suffer if the estate was distributed, as his affidavit was vague and did not provide specific details of the alleged loss. The court held that the mere filing of a notice of appeal does not automatically entitle a party to a stay...
Source-derived case information.
- Citation
- [2022] KEHC 12461 (KLR)
- Parties
- Respondent: Maria Nyankomba Getate; Applicant: Francis Nyang'au Ongori
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 250 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Stay of Execution, Appeals Process, Probate and Administration, Substantial Loss, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maria Nyankomba Getate
Respondent
Francis Nyang'au Ongori
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for a stay of execution of the court's ruling pending appeal.
- 2 Whether the court has jurisdiction to grant a stay where only a notice of appeal has been filed and not a substantive appeal.
- 3 Whether the applicant has shown that he will suffer substantial loss if the stay is not granted.
Ratio Decidendi
The court found that the applicant failed to demonstrate the substantial loss he would suffer if the estate was distributed, as his affidavit was vague and did not provide specific details of the alleged loss. The court held that the mere filing of a notice of appeal does not automatically entitle a party to a stay of execution. The balance of convenience did not favour the applicant, especially given the protracted nature of the proceedings since 2011 and the need to bring the matter to a close by distributing the estate. Consequently, the application for stay of execution was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated February 1, 2022 is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
23 paragraphs
In re Estate of Yorita Nyomenda (Deceased) (Succession Cause 250 of 2011) [2022] KEHC 12461 (KLR) (2 August 2022) (Ruling)
Neutral citation: [2022] KEHC 12461 (KLR)
Republic of Kenya
In the High Court at Kisii
Succession Cause 250 of 2011
REA Ougo, J
August 2, 2022
IN THE MATTER OF THE ESTATE OF YORITA NYOMENDA (DECEASED)
Between
Maria Nyankomba Getate
Applicant
and
Francis Nyang'au Ongori
Objector
Ruling
1. Francis Nyang’au Ongori (the applicant/objector) seeks a stay of execution of this court’s ruling dated December 14, 2021 pending the hearing and determination of the intended appeal in the Court of Appeal.The respondent Maria Nyankomba Getate has opposed the application.
2. The applicant depones in his supporting affidavit dated February 1, 2022 that he had lodged an appeal and that his appeal in the Court of Appeal has high chances of success. That the petitioner has commenced the distribution process of the assets forming the estate of the late Yorita Nyomenda despite being served with the notice of appeal dated January 28, 2022. That if the application is not granted the filed notice of appeal will be rendered nugatory.
3. The respondent filed grounds of opposition dated the February 18, 2022. In the said grounds she states as follows;“That there is no appeal pending to warrant the court issue an order of stay of the court’s ruling delivered on the December 14, 2021. That an order of stay pending appeal cannot be issued without an appeal and that the court has no jurisdiction to issue the orders as prayed as its jurisdiction under section 7 of the Appellate Jurisdiction Act has not been invoked and that the application is an abuse of court process.”
4. The application was canvassed by way of oral submissions. I have considered the said submissions.
5. I am guided by the provisions of Order 42 rule 6. The application was filed on the January 28, 2022. It was filed within a reasonable period. The second limb is that the petitioner has to demonstrate that he will suffer substantial loss. The applicant claims that the respondent has started to distribute the estate. He does not explain the substantial loss he will incur if the estate is distributed.
6. I find that his affidavit in support of the application is rather vague. The applicant claims he has filed a notice of appeal. That is not a reason to stay proceedings. The balance of convenience does not tilt in the applicant’s favour. In my view the application dated February 1, 2022 has no merit. This is a matter that has been in court since 2011 the estate needs to be distributed.
7. I therefore dismiss the application dated February 1, 2022. Each party to bear their own costs.
DATED, SIGNED AND DELIVERED AT KISII THIS 2ND DAY OF AUGUST, 2022. R.E. OUGOJUDGEIn the presence of:Mr. Nyariki h/b for Mr. Nyagaka For the ObjectorMr. Begi for the Petitioner AbsentAphline/Emily Court Assistant