[2008] KEHC 1749 (KLR)
The court found that the suit property had already been registered in the names of all the daughters of the deceased, and each beneficiary had been given their respective portion. Granting a blanket stay of execution would be unjust as it would deny other beneficiaries the use of their portions. However, to preserve...
Source-derived case information.
- Citation
- [2008] KEHC 1749 (KLR)
- Parties
- Applicant: Margaret Wacheke Mutuota; Respondent: Jane Wanjiru Watoro
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 2 of 1993
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- Prohibitory order granted over the suit property pending determination of the appeal; costs to abide the outcome of the appeal.
- Judges
- MM Kasango
- Legal Topics
- Succession of Estates, Distribution of Property, Stay of Execution, Prohibitory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wacheke Mutuota
Applicant
Jane Wanjiru Watoro
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the judgment distributing the deceased's estate should be granted pending appeal.
- 2 Whether the applicant and her family would suffer irreparable harm if the judgment is executed before the appeal is determined.
- 3 Whether the interests of all beneficiaries are adequately protected pending the appeal.
Ratio Decidendi
The court found that the suit property had already been registered in the names of all the daughters of the deceased, and each beneficiary had been given their respective portion. Granting a blanket stay of execution would be unjust as it would deny other beneficiaries the use of their portions. However, to preserve the status quo and protect the interests of all parties pending the appeal, the court determined that a prohibitory order should issue over the suit property until the appeal is determined. This would prevent any dealings or further subdivision of the land, ensuring that the rights of all beneficiaries are safeguarded while the appellate process is ongoing. Costs of the...
Court Disposition
Prohibitory order granted over the suit property pending determination of the appeal; costs to abide the outcome of the appeal.
Orders
- A prohibitory order is issued over Parcel No. Loc 4/Kairo/381 until Civil Appeal No. 2 of 2008 is determined.
- Each party is granted liberty to apply for further orders in respect of the prohibitory order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 2 of 1993
IN THE MATTER OF THE ESTATE OF MUTUOTA MUCHUI.. DCD
AND
MARGARET WACHEKE MUTUOTA………………...… PETITIONER
VERSUS
JANE WANJIRU WATORO……..……….......…………….. OBJECTOR
RULING
This court by its judgment dated 16th November 2007 granted orders to the effect that parcel No. Loc 14/Kairo/381 be divided in equal portions amongst the five daughters of the deceased. The applicant Margaret Waceke Mutuota who was an objector in this succession case was dissatisfied with that judgment and filed a Notice of Appeal. During the submissions before court the applicant’s advocate stated that an appeal has now been filed being Appeal No. 2 of 2008. Pending the hearing and the determination of that appeal the applicant has filed an application by summons dated 21st December 2007. In that application she seeks
stay of the judgment of 16th November 2007. The application is based on the ground that the applicant’s four children and her grandchildren live and cultivate on the suit land. That if the judgment delivered herein was executed it would have a disruptive effect on those settlements of her children, grandchildren and herself. The applicant deponed that she and her children had heavily invested in their livelihood on that parcel of land. The respondents filed a Replying Affidavit in which they stated that before the death of their father the applicant had denied them to receive or to utilize about 200 (two hundred) tea bushes which are on that parcel of land. The respondents were of the view that the application is actuated by malice and was brought with ill motive by the applicant. That the intention of the applicant is to exclude the respondent from benefiting from the proceedings of the cash crop. They further deponed that the applicant is wantonly wasting coffee bushes on the portions that bring to the respondent. They stated that the land had been surveyed and their respective portions had been delineated.
I have considered the submission of each side. It is clear that on the grant being confirmed the suit property
was registered in the names of all the daughters of the deceased. This fact is also conceded by the objector. The objector accepts that each beneficiary was given their portion. With that in mind it would be unjust to grant wholesomely the orders that are prayed for by the applicant. I believe the best decision would be that each beneficiary be entitled to make use of their own parcel of land but that a prohibition do issue on that land until the appeal is determined. Accordingly I grant the following orders:-
1. That a prohibitory order do issue over
Parcel No. Loc 4/Kairo/381 until Civil Appeal No. 2 of 2008 is hereby determined.
2. Each party is granted liberty to apply for further orders in respect of the prohibitory
Order hereby issued.
3. The cost of the Notice of Motion dated 21st December 2007 shall abide with Appeal No. 2 of 2008.
Dated and delivered at Nyeri this 18th day of June 2008.
MARY KASANGO
JUDGE