[2011] KEHC 2697 (KLR)
The court found that the applicant, Misheck Muriira Riungu, had demonstrated that he may suffer substantial loss if the stay of execution was not granted and the suit property was sold to third parties before the appeal was determined. The court exercised its discretion to grant leave to appeal and ordered that...
Source-derived case information.
- Citation
- [2011] KEHC 2697 (KLR)
- Parties
- Applicant: Janet Karimi M'Iringo; Respondent: Ceaser Riungu; Respondent: Misheck Muriira Riungu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 65 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
- Outcome
- Leave to appeal granted; stay of execution granted by way of restriction; costs to applicant.
- Judges
- MM Kasango
- Legal Topics
- Leave to Appeal, Stay of Execution, Registration of Land, Inhibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Karimi M'Iringo
Applicant
Ceaser Riungu
Respondent
Misheck Muriira Riungu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
Legal Issues
- 1 Whether leave should be granted to file an appeal against the judgment of 22nd October 2010.
- 2 Whether a stay of execution or an order of inhibition should be granted to prevent the sale or transfer of the suit property pending appeal.
Ratio Decidendi
The court found that the applicant, Misheck Muriira Riungu, had demonstrated that he may suffer substantial loss if the stay of execution was not granted and the suit property was sold to third parties before the appeal was determined. The court exercised its discretion to grant leave to appeal and ordered that after registration of the property in Janet Karimi M'Iringo's name, a restriction be registered to prevent any further dealings with the land until the appeal is finally determined or further orders are made. The court also lifted the existing inhibition to allow registration in accordance with the judgment, but immediately imposed a new restriction to preserve the subject matter...
Court Disposition
Leave to appeal granted; stay of execution granted by way of restriction; costs to applicant.
Orders
- The inhibition or restriction registered on parcel number Abogeta/Kithangari/746 is hereby lifted.
- Parcel No. Abogeta/Kathangari/746 to be registered in the name of Janet Karimi M'Iringo in accordance with the judgment of 22nd October 2010; upon registration, a restriction is to be registered restricting any further dealings with the parcel until final determination of the appeal or further orders of the court.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCC. CAUSE MISC. 65 OF 2000
IN THE MATTER OF THE ESTATE OF THE LATE IRINGO MWITU (DECEASED)
JANET KARIMI ................................................................................................................APPLICANT
VERSUS
CEASER RIUNGU .................................................................................................1ST RESPONDENT
MISHECK M. RIUNGU...........................................................................................2ND RESPONDENT
RULING
This court by its judgment dated 22nd October 2010 ordered that the parcel number Abogeta/Kithangari/746 (suit property) be registered in the name of Janet Karimi M'Iringo (Janet). The court by that judgment found that Janet was the rightful heir of the deceased and further made a finding that the purchase of the suit property by Misheck Riungu (Riungu) was tainted with legality. Riungu has filed the Chamber Summons dated 28th October 2010. By that Chamber Summons, Riungu seeks the court’s leave to file an appeal against the aforestated judgment.That prayer was not opposed by Janet and in my view it is merited. Riungu in the same Chamber Summons sought stay of execution of the judgment herein on an order of status quo to be maintained in respect of the registration of the suit property. In support of that prayer, Riungu deponed in his affidavit that Janet was arranging on being registered as the owner of the suit property to sell it. That Janet on learning that he was intent on filing an appeal had intensified her search for a buyer. Janet denied the allegations of Riungu and stated that she had no intention of selling the suit property which she said she had occupied for over 40 years and now occupies it with five of her children. I am satisfied that Riungu has shown that if the stay of execution of the judgment is not granted and Janet sells the suit property to third parties, he may, if his appeal is successful, suffer substantial loss. It is for that reason that I find that after the property is registered in the name of Janet, it should have an inhibition registered against it. I grant the following orders:-
1. The inhibition or restriction registered on parcel number Abogeta/Kithangari/746 be and is hereby lifted.
2. The parcel No. Abogeta/Kathangari/746 be registered in the name of Janet Karimi M'Iringo in accordance with the judgment of this court dated 22nd October 2010 and once it is so registered, a restriction be hereby registered restricting any further dealings with that parcel of land until the final determination of the appeal being filed in the Court of Appeal by Misheck Muriira Riungu is finally determined or until further orders of this court.
3. Leave is hereby granted to Misheck Muririra Riungu to file an appeal against the judgment of 22nd October 2010 to the Court of Appeal. The costs of the Chamber Summons dated 22nd October 2010 shall be paid by Misheck Muririra Riungu to Janet Karimi M’Iringo.
Dated, signed and delivered at Meru this 18th day of May 2011.
MARY KASANGO
JUDGE