[2022] KEHC 11005 (KLR)
The court found that since the proceedings concern family and succession matters, the parties are entitled to have all issues fully litigated to closure. Granting a stay of execution pending appeal is appropriate to preserve the status quo and ensure that the appeal is not rendered nugatory. The court exercised its...
Source-derived case information.
- Citation
- [2022] KEHC 11005 (KLR)
- Parties
- Appellant: Millah Ngaira; Respondent: Stanley Shivachi Ngaira
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Family Appeal 13 of 2021
- Procedural Posture
- Family Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Judges
- WM Musyoka
- Legal Topics
- Stay of Execution, Succession Proceedings, Grant Confirmation, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Millah Ngaira
Appellant
Stanley Shivachi Ngaira
Respondent
Procedural Posture
Family Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the determination of the appeal in a succession matter.
- 2 Whether the appellant has a right to have all issues litigated to closure in family proceedings.
Ratio Decidendi
The court found that since the proceedings concern family and succession matters, the parties are entitled to have all issues fully litigated to closure. Granting a stay of execution pending appeal is appropriate to preserve the status quo and ensure that the appeal is not rendered nugatory. The court exercised its discretion to grant a stay, noting that the appellant had already lodged an appeal and that the interests of justice required the matter to be determined on its merits. The court also gave directions to expedite the appeal process, including calling for the original trial records and setting timelines for filing and serving the record of appeal.
Court Disposition
Stay of execution granted pending appeal.
Orders
- Stay of execution of the orders made in the impugned ruling is granted pending appeal.
- The Deputy Registrar shall call for the original trial records.
Full Case Text
Judgment text and source record
22 paragraphs
Ngaira v Ngaira (Family Appeal 13 of 2021) [2022] KEHC 11005 (KLR) (10 June 2022) (Ruling)
Neutral citation: [2022] KEHC 11005 (KLR)
Republic of Kenya
In the High Court at Kakamega
Family Appeal 13 of 2021
WM Musyoka, J
June 10, 2022
Between
Millah Ngaira
Appellant
and
Stanley Shivachi Ngaira
Respondent
(Appeal from ruling of Hon. Zachariah Joseph Nyakundi, Senior Principal Magistrate, in Butali SPMCCC No. 77 of 2018 (formerly Kakamega HCSC No. 557 of 2013), of 16th September 2021)
Ruling
1. Am called upon to determine an application, dated 6th December 2021, which principally seeks stay of execution of the orders made in the ruling, which is the subject of the instant appeal, pending hearing and determination of the appeal.
2. The orders made in the impugned ruling are for a land surveyor to visit South Kabras/Bushu/1518, with a view to ascertain its acreage; for the land to be subdivided equally between the two houses of the deceased; and for the administrators to file for confirmation of their grant afresh.
3. The appellant herein was aggrieved by the orders, and has lodged this appeal. The memorandum of appeal is dated 27th September 2021, and was filed herein on 7th October 2021.
4. A temporary stay order was granted on 15th December 2021, and the parties went on to file written submissions, on the Motion of 6th December 2021, although directions had not been given to that effect. I have read through the written submissions, and noted the arguments advanced.
5. The appellant has lodged an appeal. These are proceedings in a succession cause, and touch on family issues. The parties have a right to have all lingering issues litigated to whatever level that they wish, so that they can get closure.
6. In view of what I have stated on paragraph 6 above, I do hereby grant stay pending appeal. To fast-rack the matter, let the Deputy Registrar call for the original trial records. The appellant shall file and serve her record of appeal in thirty days. The appeal shall be canvassed by way of written submissions. The appeal shall be mentioned on 22nd July 2022 for compliance and allocation of a date for judgment. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10THDAY OF JUNE 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mbaka, instructed by Omwando Mbaka & Company Advocates, for the appellant.Mr. Munyendo, instructed by Oscar Wachilonga & Company, Advocates, for the respondent.