[2008] KEHC 2325 (KLR)
The court found that both parties had legitimate claims to the rice holding as successors of the deceased tenant, one as a stepdaughter and the other as a widow. Given that the lower court had not yet determined the substantive succession dispute, and in the absence of any prayer for stay of proceedings in the lower...
Source-derived case information.
- Citation
- [2008] KEHC 2325 (KLR)
- Parties
- Appellant: Mary Njeri Kamau; Respondent: Njoki Gitau
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 114 of 2007
- Procedural Posture
- Civil Appeal / Interlocutory Application Ruling
- Outcome
- Interlocutory orders of the Senior Resident Magistrate stayed; both parties to continue utilizing the rice holding in a 2:3 ratio pending determination of the succession case; each party to bear its own costs.
- Legal Topics
- Succession Disputes, Interlocutory Injunctions, Use and Occupation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Kamau
Appellant
Njoki Gitau
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application Ruling
Legal Issues
- 1 Whether the interlocutory injunction against the appellant should be stayed pending determination of the succession proceedings.
- 2 Whether both parties are entitled to continue utilizing the rice holding pending final determination of the lower court proceedings.
- 3 Whether the ex parte orders should be vacated due to alleged delay and malice.
Ratio Decidendi
The court found that both parties had legitimate claims to the rice holding as successors of the deceased tenant, one as a stepdaughter and the other as a widow. Given that the lower court had not yet determined the substantive succession dispute, and in the absence of any prayer for stay of proceedings in the lower court, the court held that it was just and equitable for both parties to continue utilizing the land in the same proportions as before (2:3 ratio) until the final determination of the succession proceedings. The interlocutory orders of the Senior Resident Magistrate were stayed to prevent prejudice to either party and to maintain the status quo, ensuring that the Irrigation...
Court Disposition
Interlocutory orders of the Senior Resident Magistrate stayed; both parties to continue utilizing the rice holding in a 2:3 ratio pending determination of the succession case; each party to bear its own costs.
Orders
- Both parties shall continue to utilize the holding in the ratio of 2:3 pending determination of Misc. Succ. Case No. 32 of 2007 at Wanguru Court.
- Orders issued by Senior Resident Magistrate are stayed pending determination of the succession case.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 114 of 2007
MARY NJERI KAMAU….......……………………………APPELLANT
VERSUS
NJOKI GITAU………………………………………….RESPONDENT
RULING
There are two applications before the court. First in time is dated 4/12/2007 by M/s Kiama Advocates. It is related in an appeal filed against interlocutory order of Senior Resident Magistrate Kimutai made on 15/11/2007.
The second Application is dated 15/5/2008 seeking exparte orders given by this court to be vacated as it appears the holder of Ex parte order has taken far away date for hearing of the application inter-parties showing malice on her part and intention to delay. The matter relates to succession of a rice holding hither to held by deceased tenant and the applicant and Respondent are claiming rights from the deceased tenant one as a step daughter the other as widow. The appeal disputes the issue of an interlocutory injunction against the appellant while both parties had been cultivating rice on the land one took 2 acres and the other 3 acres. The case in lower court is not determined. There is need to determine the successor to enable the Irrigation Board to organize the cultivation of rice on the land. Hence the lower court proceedings were initiated by the Manager of Mwea Irrigation Scheme as provided under Irrigation Act.
Upon hearing submissions of both counsel and upon affidavits of the parties filed herein, it is my view that both parties should continue utilizing the plot on the ratio of 2:3 pending hearing of the final determination of hearing of the proceedings in the lower court. There is no prayer by any party for stay of proceedings in the lower court pending hearing of appeal.
I therefore order that both parties shall continue to utilize the holding and the orders issued by Senior Resident Magistrate are hereby stayed pending determination of Misc.Succ. Case No. 32 of 2007 at Wanguru Court. The order for stay pending appeal is not discharged.
Each party to pay its own costs.
It is so ordered.
Dated this 23rd May, 2008.
J. N. KHAMINWA
JUDGE
23/5/2008
Khaminwa- Judge
Njue – Clerk
Mr. Okwaro HB for Ms Thungu
Read in open court.
J. N. KHAMINWA
JUDGE