[2014] KEHC 1837 (KLR)
The court found that since the respondent did not raise any serious objection to the grant of leave to appeal out of time, and considering the nature of succession matters where all beneficiaries must be heard, it was just to grant the orders sought. The applicant and her children were in occupation of the premises,...
Source-derived case information.
- Citation
- [2014] KEHC 1837 (KLR)
- Parties
- Applicant: Labiba Said Mohamed; Respondent: Jamila Mbarak Baadel
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 28 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal Out of Time
- Outcome
- Application allowed.
- Judges
- JV Juma
- Legal Topics
- Succession Proceedings, Leave to Appeal Out of Time, Stay of Execution, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Labiba Said Mohamed
Applicant
Jamila Mbarak Baadel
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the judgment in Kadhi's Succession Case No. 77 of 2013.
- 2 Whether a stay of execution of the decree/order issued on 13th May, 2014 should be granted pending the determination of the application.
- 3 Whether the draft Memorandum of Appeal should be deemed as duly filed and served upon payment of requisite fees.
Ratio Decidendi
The court found that since the respondent did not raise any serious objection to the grant of leave to appeal out of time, and considering the nature of succession matters where all beneficiaries must be heard, it was just to grant the orders sought. The applicant and her children were in occupation of the premises, and refusal to grant a stay would risk their eviction, potentially rendering the intended appeal nugatory. Therefore, the court allowed the prayers for leave to appeal out of time, for the draft Memorandum of Appeal to be deemed duly filed and served upon payment of requisite fees, and granted a stay of execution of the Kadhi's orders in Succession Case No. 77 of 2013. Each...
Court Disposition
Application allowed.
Orders
- Leave to appeal out of time against the judgment in Kadhi's Succession Case No. 77 of 2013 is granted.
- The draft Memorandum of Appeal annexed to the affidavit of the applicant is deemed as duly filed and served upon payment of requisite fees.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
FAMILY DIVISION
AT MOMBASA
MISCELLANEOUS CIVIL APPL. NO. 28 OF 2014
IN THE MATTER OF THE ESTATE OF ABDULKARIM OMAR KHAMIS
(DECEASED)
LABIBA SAID MOHAMED…….………………………………APPLICANT
VERSUS
JAMILA MBARAK BAADEL……….……………….….. RESPONDENT
RULING
By way of this Notice of Motion dated 20th June, 2014 brought under certificate of urgency the applicant seeks inter alia the following orders:-
“2. THAT there be a stay of execution of the Decree/Order issued on 13th May, 2014 in the Kadhi’s Succession Case No. 77 of 2013 pending the hearing and determination of this application.
3. THAT the proposed appellant be granted leave to appeal out of time against the whole judgment of the Honourable Sheikh Al Mudhar A. S. Hussein, delivered on 17th April, 2014 in Kadhi’s Succession Case No. 77 of 2013.
4. THAT the draft Memorandum of Appeal annexed to the affidavit of the applicant be deemed as duly filed and served upon payment of the requisite fees.”
The application was supported by the affidavit of the applicant LABIBA SAID MOHAMED sworn on 25th June, 2014.
The respondent opposed this application by way of Grounds of Opposition dated 8th September, 2014. MR. AZIZ Advocate acted for the Applicant while MR. HAMZA appeared for the Respondent. Both counsel opted not to file any written submissions but asked court to rely on the pleadings and affidavits on record.
I have carefully perused the material on file. The respondent has not raised any serious objection to the grant of leave to appeal out of time. I therefore allow prayers (3) and (4) of this Notice of Motion. On the question of stay the court is mindful of the fact that this is a succession matter. It is imperative that all beneficiaries be accorded a hearing. The applicant and her children are in occupation of the premises. Should a stay be declined then she stands the risk of being evicted. This will render her intended appeal nugatory. For this reason I do allow the prayer for a stay in terms of prayer (2). The stay to relate to the Kadhi’s orders in Succession Case No. 77 of 2013 since no decree had been extracted as yet. Each party to meet its own costs.
Dated and Delivered in Mombasa this 10th day of November, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Odhiambo holding brief Mr. Aziz for Applicant
Ms. Ngige holding brief Mr. Hamza for Respondent
Court Clerk Mutisya