[2002] KEHC 1034 (KLR)
The court held that it cannot grant a stay of execution of the orders made on 5th December, 2000, because those orders were reviewed and varied by the court's subsequent ruling on 19th October, 2001. The operative order is now the one from the later ruling, which is not under challenge or subject to a stay...
Source-derived case information.
- Citation
- [2002] KEHC 1034 (KLR)
- Parties
- Applicant: Jonh Wakapa Pere; Respondent: Richard Njenga Wakapa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 441 of 1984
- Procedural Posture
- Probate and Administration / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Appeals in Probate Matters, Review of Court Orders, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonh Wakapa Pere
Applicant
Richard Njenga Wakapa
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court can grant a stay of execution of orders that have already been reviewed and varied by a subsequent ruling.
- 2 Whether the application for stay is competent given the lapse of the initial stay period granted pending formal application.
Ratio Decidendi
The court held that it cannot grant a stay of execution of the orders made on 5th December, 2000, because those orders were reviewed and varied by the court's subsequent ruling on 19th October, 2001. The operative order is now the one from the later ruling, which is not under challenge or subject to a stay application. The application for stay is therefore incompetent and bad in law, as it seeks to stay an order that is no longer in effect. The court further clarified that the lapse of the initial seven-day stay did not extinguish the applicant's right to file a formal application, but the substance of the application fails for the reasons stated.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed as incompetent and bad in law.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI PROBATE AND ADMINISTRATION NO. 441 OF 1984
IN THE MATTER OF THE ESTATE OF WAKAPA PERE (DECEASED)
JONH WAKAPA PERE …………………………………… APPLICANT
V E R S U S
RICHARD NJENGA WAKAPA…………………………. RESPONDENT
R U L I N G
In this cause I delivered a Judgment on 5th December, 2000. Leave to appeal against the same was granted on the same day. I also granted on an oral application, stay of execution of order for seven days pending filing of formal application.
That is how the application dated 19th February, 2001 is filed and specific prayer is made therein for stay of execution of Court orders issued on 5th December, 2000 till hearing and determination of the appeal.
In meantime an application to review my orders was made on 16th March, 2001 on the grounds of error apparent and the redistribution of the plot of land belonging to the estate was sought. I did review my orders and varied the orders of distribution of the estate property.
The orders made in my previous ruling of 5th December, 2000 are thus clearly varied and replaced and they are effectively the orders of this court as per my ruling of 19th October, 2001.
Can I now grant stay of execution of the orders made on 5th December, 2001? Mr. Macharia and Ms Mbaka learned counsel for the respondent submit that this court cannot give such stay and Mr. Mutiso the learned counsel for the applicant submits I can as nothing is effectively challenged. He made a very bold and interesting contention that what the applicant is challenging is the reasons of my judgment and not the end part thereof, that is the effective order. He however could not clearly respond to my specific question to wit “From which ruling the decree or order shall be extracted”. He responded it should be from the later ruling but he proceeded to emphasis and reiterate that the applicant is not really interested in the specific shares of distribution, he is challenging the order of distribution itself.
With greatest respect to Mr. Mutiso I cannot agree with him for the following simple reasons.
The appeal is against the decree or order which is the most important document in appeal proceedings. The stay prayed for is also against the execution of decree or order made on 5th of December, 2000. The notice of appeal was and is in this case against the Judgment and order given on 5th December, 2000. That order is varied on 19th October, 2001 which is not appealed against and is not sought to be stayed.
I agree that if I grant the application for stay as prayed for, I shall be staying the order which is not on record and cannot form a part of decree or order of this cause which is a formal expression of the decision of this court.
I shall not however agree that the application as such is not competent because it is filed after seven days, the period for which I granted the stay pending the formal application.
As per my order for stay it is the stay which lapsed after seven days ant not the right of the applicant to file a formal application. However for reasons earlier stated, I dismiss the application being incompetent and bad in law.
The Respondent having sought the consent of the applicant to hear and determine the review application prior to this application, I shall not make orders on costs.
Dated and delivered at Nairobi this 26th day of February, 2002.
K. H. RAWAL
J U D G E