[2021] KEHC 1218 (KLR)
The court found that the appellant, having lodged the appeal within the prescribed time, is entitled to have her appeal heard before any irreversible steps are taken in the transmission of the subject land. Granting a stay of execution is necessary to preserve the subject matter of the appeal and prevent the appeal...
Source-derived case information.
- Citation
- [2021] KEHC 1218 (KLR)
- Parties
- Appellant: Mary Nanzala; Respondent: Joseck Kitui Mulunda
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1 of 2021
- Procedural Posture
- Succession Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Motion for stay of execution and prohibition allowed in its entirety.
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Confirmation of Grant, Appeals Process, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nanzala
Appellant
Joseck Kitui Mulunda
Respondent
Procedural Posture
Succession Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the certificate of confirmation of grant should be granted pending appeal.
- 2 Whether a prohibition should be entered in the land register to prevent transmission during the pendency of the appeal.
Ratio Decidendi
The court found that the appellant, having lodged the appeal within the prescribed time, is entitled to have her appeal heard before any irreversible steps are taken in the transmission of the subject land. Granting a stay of execution is necessary to preserve the subject matter of the appeal and prevent the appeal from being rendered nugatory. The court also found it prudent to enter a prohibition in the land register to prevent any dealings with the property until the appeal is determined. The Motion for stay and prohibition was therefore allowed in its entirety.
Court Disposition
Motion for stay of execution and prohibition allowed in its entirety.
Orders
- Stay of execution of the certificate of confirmation of grant issued in Butali PMCSC No. 67 of 2019 is granted pending hearing and determination of the appeal.
- A prohibition is to be entered in the register for Kabras/Matsakha/447 pending appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION APPEAL NO. 1 OF 2021
(From the decision of Hon. ZJ Nyakundi, Senior Principal Magistrate (SPM),
delivered on 28th January 2021, in Butali PMCSC No. 67 of 2019)
MARY NANZALA.................................................................................................APPELLANT
VERSUS
JOSECK KITUI MULUNDA............................................................................RESPONDENT
RULING
1. The matter for determination is the Motion, dated 9th March 2021, principally seeking stay of execution of a certificate of confirmation of grant issued by the primary court in Butali PMCSC No. 67 of 2019, on 21st September 2020, pending hearing and determination of the instant appeal, and also for a prohibition to be entered in the register for Kabras/Matsakha/447.
2. After the ruling of 28th January 2021, the appellant was aggrieved, and, on account of that, she took the steps to exercise her right of appeal by lodging the instant appeal, which was registered at the registry here on 18th February 2021, within the time allowed for lodging appeals from decisions of a civil nature.
3. The appellant is entitled to her day in court. It would not be prudent that the process of transmission of the land be carried out while an appeal is pending, for if it proves successful, all the processes undertaken at transmission would have to be nullified.
4. Accordingly, I allow the Motion, dated 9th March 2021, in its entirety. Costs shall be in the appeal. Let the Deputy Registrar cause the matter to be listed for mention for the purpose of taking directions on disposal of the appeal. I note that the trial court records have been availed from the lower court. Let the appellant file and serve a record of appeal within fourteen days. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGATHIS10THDAY OF DECEMBER, 2021
W. MUSYOKA
JUDGE