[2016] KEHC 6509 (KLR)
The court found that although the applicants had taken preliminary steps towards lodging an appeal, including filing a notice of appeal and obtaining proceedings and a certificate of delay, they had not demonstrated that leave to appeal had been obtained as required by law. In the absence of such leave, the court...
Source-derived case information.
- Citation
- [2016] KEHC 6509 (KLR)
- Parties
- Applicant: [Applicants not named in excerpt]; Respondent: Esther Malaso Murero
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 95 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Leave to Appeal, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
[Applicants not named in excerpt]
Applicant
Esther Malaso Murero
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the orders made on 9th May 2013 pending appeal.
- 2 Whether leave to appeal has been obtained as required for an appeal from the High Court to the Court of Appeal.
Ratio Decidendi
The court found that although the applicants had taken preliminary steps towards lodging an appeal, including filing a notice of appeal and obtaining proceedings and a certificate of delay, they had not demonstrated that leave to appeal had been obtained as required by law. In the absence of such leave, the court held that there was no basis to grant a stay of execution of the orders made on 9th May 2013. Accordingly, the application for stay was dismissed with costs, and any interim orders previously granted were discharged.
Court Disposition
application dismissed
Orders
- The application dated 12th July 2013 for stay of execution is dismissed with costs.
- The interim orders obtained on 16th July 2013 are discharged.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 95 OF 2006
IN THE MATTER OF THE ESTATE OF JOHN TUPENET MURERO (DECEASED)
RULING
1. The Motion dated 12th July 2013 is for stay of execution of the orders made on 9th May 2013 pending appeal. The applicants have attached to their application a Notice of Appeal dated 22nd May 2013 as evidence that they intend to appeal the said orders. There is no evidence that the appeal has been filed, but there is evidence that the proceedings have been typed and a certificate of delay duly executed on 15th August 2013.
2. The respondents have replied to the application vide the affidavit sworn on 11th September 2013 by Esther Malaso Murero. The reply dwells on a number of substantive matters, and does not quite address the pertinent issue before the court, whether stay of execution should be granted or not.
3. It is within the applicant’s right to appeal against any decision that they are dissatisfied with. The Court of Appeal in Rhoda Wairimu Karanja & another vs. Mary Wangui Karanja & another (2014) eKLR stated that there is no express automatic right of appeal from a decision of the High Court to the Court of Appeal. Decisions of the High Court are however appealable but with leave of the High Court or that of the Court of Appeal where the High Court refuses to grant leave.
4. I note that the preliminary steps have been taken in the matter towards lodging an appeal at the Court of Appeal, such a filing a notice of appeal, obtaining typed proceedings and a certificate of delay. However it has not been demonstrated that leave to appeal has been obtained from the High Court or from the Court of Appeal in terms of the ruling in Rhoda Wairimu Karanja & another vs. Mary Wangui Karanja & another.
5. In view of what I have stated above I do not find basis upon which I can grant stay of execution of the orders sought when leave to appeal has not been granted. Consequently, I do hereby disallow the application dated 12th July 2013. The same is hereby dismissed with costs. The interim orders obtained on 16th July 2013, and which have been extended several times, are hereby discharged.
6. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 5TH DAY OF FEBRUARY, 2016.
W. MUSYOKA
JUDGE