[2005] KEHC 486 (KLR)
The High Court held that the application for an injunction pending appeal was without merit because the Succession Act (Cap 160) expressly excludes the application of the Civil Procedure Rules and Act (Cap 21) except where specifically provided. There is no right of appeal from High Court decisions in succession...
Source-derived case information.
- Citation
- [2005] KEHC 486 (KLR)
- Parties
- Applicant: Swaleh Karama (Estate of); Respondent: Mr. Khatib
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 107 of 2000
- Procedural Posture
- Probate and Administration / Ruling on Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Injunction Pending Appeal, Succession Procedure, Appeal Rights, Applicability of Civil Procedure, Succession Act Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swaleh Karama (Estate of)
Applicant
Mr. Khatib
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Injunction Pending Appeal
Legal Issues
- 1 Whether an injunction pending appeal can be granted in succession matters under Cap 160.
- 2 Whether there is a right of appeal from High Court decisions in succession matters to the Court of Appeal.
- 3 Whether Civil Procedure Rules apply to succession proceedings.
Ratio Decidendi
The High Court held that the application for an injunction pending appeal was without merit because the Succession Act (Cap 160) expressly excludes the application of the Civil Procedure Rules and Act (Cap 21) except where specifically provided. There is no right of appeal from High Court decisions in succession matters unless expressly allowed by statute, and the Parliament did not intend for such matters to reach the Court of Appeal. Therefore, the applicant could not rely on the Civil Procedure Rules to seek an injunction, and any such relief should be sought under the Court of Appeal Rules. The application was thus dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 28/6/05 is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Probate & Admin. Cause No. 107 of 2000
IN THE MATTER OF THE ESTATE OF: SWALEH KARAMA
R U L I N G
The application before the court is dated 28/6/05 seeking an injunction pending hearing of an appeal proposed to Court of Appeal.
Application is opposed by the respondents who have filed a preliminary objection arguing that the application is incompetent, misconceived and bad in law and that there is no appeal pending.
Argument was that there is no right of appeal in matters decided in the high Court under Cap 160. The Parliament never intended that succession matters should reach Court of Appeal. Also that Civil Procedure Rules are not applicable save those specifically mentioned. Section 41 is not one of the Rules stated. I am inclined to agree with the Respondents. The rules of Civil Procedure and the provisions of the Act (Cap 21) are expressed excluded under the Succession Act. However anyone seeking injunction pending appeal can invoke the powers granted to court of Appeal under the Court of Appeal Rules.
I therefore find no merit in this application and the same is dismissed with costs.
Delivered and dated at Mombasa this 20th day of December 2005.
J. KHAMINWA
J U D G E
20/12/05
Khaminwa, J
Jason – Court Clerk
Mr. Khatib for Repondent
Ruling read in his present.
KHAMINWA, J