[2007] KEHC 912 (KLR)
The court found that the mere filing of a notice of appeal does not amount to a stay of execution. Since there was no application or order for stay, the appellant would not be prejudiced by the execution of the decree. Therefore, the court granted the application and authorized an officer of the court to execute the...
Source-derived case information.
- Citation
- [2007] KEHC 912 (KLR)
- Parties
- Appellant: Murugi Kanyeki Ncobi; Respondent: Michael Mwai Kanyeki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application
- Outcome
- Application allowed. Orders granted as prayed in Chamber Summons numbers 1 and 2. No order as to costs.
- Legal Topics
- Stay of Execution, Execution of Decree, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Murugi Kanyeki Ncobi
Appellant
Michael Mwai Kanyeki
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court should authorize an officer of the court to execute documents for distribution of estate due to respondent's refusal to sign.
- 2 Whether the filing of a notice of appeal operates as a stay of execution.
Ratio Decidendi
The court found that the mere filing of a notice of appeal does not amount to a stay of execution. Since there was no application or order for stay, the appellant would not be prejudiced by the execution of the decree. Therefore, the court granted the application and authorized an officer of the court to execute the relevant documents to facilitate the distribution of the estate as per the orders sought in the chamber summons.
Court Disposition
Application allowed. Orders granted as prayed in Chamber Summons numbers 1 and 2. No order as to costs.
Orders
- An officer of the court is authorized to execute all relevant documents to facilitate distribution of the estate in place of the respondent.
- Orders as prayed in Chamber Summons numbers 1 and 2 are granted.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 25 OF 2005
MURUGI KANYEKI NCOBI…………….………………….APPELLANT
VERSUS
MICHAEL MWAI KANYEKI……………………………..RESPONDENT
RULING
Application dated 27/3/2007 seeks orders that an officer of court be authorized to execute all relevant documents to facilitate distribution of estate on the ground that the Respondent has refused to sign the same. Application is supported by affidavit of Appellant. The record shows that the Respondent filed Notice of appeal on 10/4/2007. On 24/5/2007 the Respondent filed a replying affidavit saying that he had filed an appeal and the Application should be dismissed. The record shows that there is no order or application for stay of execution.
I have considered the application and it is my finding that in case of land execution of a decree or order of the court the appellant is not likely to be prejudiced. An appeal does not act as stay of execution -see order 41 rule 4 CPC. I therefore allow application and grant orders as prayed and numbered 1 & 2 in Chamber Summons.
No order as to costs.
Dated this 14th December, 2007.
J. N. KHAMINWA
JUDGE
14/12/2007
Khaminwa – Judge
Njue - Clerk
M/s Thungu for Applicant
Respondent present in person
Read in open court.
J. N. KHAMINWA
JUDGE