[2007] KEHC 2652 (KLR)
The court found that the Respondent's application to strike out the appeal lacked merit because the property in question, although registered in the Respondent's name, had not been transferred to a third party without notice. Therefore, the court retains the ability to make appropriate orders regarding the property...
Source-derived case information.
- Citation
- [2007] KEHC 2652 (KLR)
- Parties
- Appellant: Jackson Kanyoni Kaburungo; Respondent: Waichinga Kaburungo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- application to strike out appeal dismissed with costs to the appellant
- Legal Topics
- Appeal Dismissal, Succession Proceedings, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kanyoni Kaburungo
Appellant
Waichinga Kaburungo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be dismissed or struck out on grounds that the subject property is no longer subject to succession.
- 2 Whether the change of registration of the property defeats the appeal.
Ratio Decidendi
The court found that the Respondent's application to strike out the appeal lacked merit because the property in question, although registered in the Respondent's name, had not been transferred to a third party without notice. Therefore, the court retains the ability to make appropriate orders regarding the property upon hearing the substantive appeal. The mere change in registration status does not render the appeal nugatory or defeat its purpose. The grounds advanced by the Respondent for dismissal were thus misconceived and insufficient to warrant striking out the appeal.
Court Disposition
application to strike out appeal dismissed with costs to the appellant
Orders
- The Notice of Motion dated 28th February 2007 is dismissed with costs to the Appellant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 38 of 1995
JACKSON KANYONI KABURUNGO………………………………..APPELLANT
Versus
WAICHINGA KABURUNGO…………………..……………………RESPONDENT
(Being an appeal from the Ruling of the Senior Resident Magistrate W. Gitari in Nyeri Succession Cause No. 181 of 1991 delivered on 12th May 1993)
RULING
The appeal herein was filed on 25th November 2005. The appeal is against the Ruling of the SPM Succession Cause No. 181 of 1991 delivered on 12th May 1993. The Respondent has filed a Notice of Motion dated 28th February 2007 brought under Sections 78(2) and 3A of the Civil Procedure Act and Rule 73 of the Probate and Administration Rules. The order sought by that application is:-
“That, the appeal herein be dismissed and/or struck out with costs as the subject matter therein is no longer subject to succession.”
The appeal relates to a ruling over a succession cause. In his supporting affidavit the Respondent stated that following that ruling and since there was no stay granted to the Appellant, the Respondent effected that ruling by registering in his name Land parcel No. IRIAINI/KIAGUTHU/569. That the said parcel of land was the subject of the succession cause. Accordingly the Respondent stated that the said parcel of land cannot be subject of the succession cause which is the order sought by the present appeal. The Appellant opposed the application. The Appellant argued that there were no grounds to warrant striking out of the appeal that the fact that there has been change of status does not defeat the appeal. That the appeal has merit.
I confirm that I have considered the application, the arguments in its favour and in opposition. Does the Respondent’s application have merit? On the basis of the grounds offered in its support, I find that it has no merit. The property, the subject of the succession Cause has not been transferred to a third party without notice and the Court can, on hearing the appeal make appropriate orders in regard to that. The ground therefore presented by the Respondent in seeking the dismissal of this appeal is misconceived. The order of the court therefore is that the Notice of Motion dated 28th February 2007 is dismissed with costs to the Appellant.
Dated and delivered at Nyeri this 20th day of July 2007.
MARY KASANGO
JUDGE