[2015] KEHC 7590 (KLR)
The court found that the order subject to the application was a dismissal with costs, which is a negative order and not capable of execution. Therefore, there was no positive order in favour of the respondent that could be stayed. As such, the application for stay of execution was misconceived and could not be...
Source-derived case information.
- Citation
- [2015] KEHC 7590 (KLR)
- Parties
- Applicant: John Karumwa Maina; Respondent: Susan Wanjiru Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1878 of 2005
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Stay of Execution, Revocation of Grant, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Karumwa Maina
Applicant
Susan Wanjiru Mwangi
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted where the impugned order is a dismissal with costs and not a positive order.
- 2 Whether the applicant demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the order subject to the application was a dismissal with costs, which is a negative order and not capable of execution. Therefore, there was no positive order in favour of the respondent that could be stayed. As such, the application for stay of execution was misconceived and could not be granted. The application was accordingly dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 1878 OF 2005
IN THE MATTER OF THE ESTATE OF MIRIAM NJOKI GACHUHI (DECEASED)
JOHN KARUMWA MAINA…………………………….APPLICANT
Versus
SUSAN WANJIRU MWANGI………………….……RESPONDENT
RULING
1. The applicant has filed a Notice of Appeal challenging the ruling delivered by this Court on 16th April 2015 which dismissed with costs his application dated 8th July 2005 seeking to have the grant of letters of administration intestate issued to the petitioner Elijah Mwangi Gachuhi on 11th June 2004 revoked and/or annulled. With the appeal was the present application seeking the stay of execution of the Court’s ruling, or an order to maintain the status quo be made, pending the hearing and determination of the appeal. The applicant stated as follows:-
“6. THAT the Respondent may go ahead and get execution orders granted on 16th April 2015 any time from now and I will suffer irreparable loss and damage as the dispute involves suit property and in the event I may be evicted from the suit property where I live with my family and have known as home for a long period of time and as such render the intended appeal herein nugatory.”
During the oral hearing of the application his counsel Mr. Kinuthia reiterated the same. This application was served on the respondent who did not file any response, and did not attend the hearing.
2. It is clear that this application has not been lodged with delay. The applicant has to show that substantial loss may result unless the stay is granted (Mediratta –v- Kenya Commercial Bank & Others [2006]2 EA 194). This is the reason he states that he stays on the suit land with his family and that he risks eviction therefrom.
3. In this case, however, no order capable of execution was given in the ruling subject of this application. There was an order dismissing the application with costs. It was a negative order, not a positive one. In Venture Capital and Credit Ltd –v- Consolidated Bank of Kenya Ltd, Civil Application No. 349 of 2003 (CAK)it was held that where there was no positive order made in favour of the respondent which is capable of execution the application for stay of execution on the ruling is misconceived.
4. In the premises, I dismiss the application with costs.
DATED and DELIVERED at NAIROBI this 28th day of July 2015
A.O. MUCHELULE
JUDGE