[2011] KEHC 2577 (KLR)
The court found that the appellant had demonstrated sufficient grounds for the grant of a stay of execution. If the stay was not granted, the disputed land could be subdivided and transferred to the respondents, who might then dispose of it to third parties, thereby rendering the appeal nugatory. The court also...
Source-derived case information.
- Citation
- [2011] KEHC 2577 (KLR)
- Parties
- Appellant: Ngari Githiori; Respondent: Munene Nguyo; Respondent: David Githae; Respondent: Teresa Nduta
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 15 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed; costs to abide the outcome of the appeal.
- Legal Topics
- Stay of Execution, Substantial Loss, Succession Disputes, Trusts in Land, Jurisdiction of Magistrate, Protection of Third Party Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngari Githiori
Appellant
Munene Nguyo
Respondent
David Githae
Respondent
Teresa Nduta
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to an order for stay of execution of the judgment pending appeal.
- 2 Whether the appeal will be rendered nugatory if the stay is not granted.
- 3 Whether the trial magistrate had jurisdiction to determine a claim based on trust within succession proceedings.
Ratio Decidendi
The court found that the appellant had demonstrated sufficient grounds for the grant of a stay of execution. If the stay was not granted, the disputed land could be subdivided and transferred to the respondents, who might then dispose of it to third parties, thereby rendering the appeal nugatory. The court also noted that the appeal raised a serious arguable point regarding the jurisdiction of the trial magistrate to determine a trust claim within succession proceedings. The risk of substantial loss and the arguability of the appeal justified the grant of the stay. Accordingly, the motion for stay of execution was allowed, with costs to abide the outcome of the appeal.
Court Disposition
Application for stay of execution allowed; costs to abide the outcome of the appeal.
Orders
- Stay of execution of the judgment of the trial court delivered on 19th August 2009 in Karatina S.R.M.C Succession Cause No. 77 of 2004 pending the hearing and determination of the appeal.
- Costs shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
P & A APPEAL NO.15 OF 2009
NGARI GITHIORI ...................................................................................APPELLANT
VS
MUNENE NGUYO.........................................................................1ST RESPONDENT
DAVID GITHAE...........................................................................2ND RESPONDENT
TERESA NDUTA....................................................................3RD RESPONDENT
(ARISING FROM KARATINA S.R.M. SUCCESSION CAUSE NO. 77 OF 2004)
RULING
Pursuant to the provisions of order 22 and 25 of the Civil Procedure Rules, Ngari Githiori, the Appellant/Applicant herein, took out the motion dated 14th March 2011 whereof he applied for an order for stay of execution of the judgment of the trial court delivered on 19th August 2009 vide Karatina S.R.M.C Succession Cause No. 77 of 2004 pending the hearing and determination of this appeal. The motion is supported by the affidavit of the Appellant/Applicant. Munene Nguyo, David Githae and Teresa Nduta being the 1st, 2nd and 3rd Respondents respectively herein opposed the motion by filing the replying affidavit of Munene Nguyo sworn 14th April 2011.
When the motion came up for interpartes hearing, Mr. Wamahiu, learned advocate for the Appellant, urged this court to grant him the orders on the basis that his client has an appeal with overwhelming chances of success. It is Mr. Wamahiu’s argument that the Appellant will suffer substantial loss if the order is denied in that the appeal will be rendered nugatory if the decree is executed. The Respondents opposed the motion claiming the same was calculated to delay the conclusion of the dispute.
I have considered the rival submissions. There is doubt that the trial court found that George Njambuya Kariuki, deceased held the parcel of land known as L.R. no. Konyu/Mukyre/783 in trust for the Respondents’ father’s family and his family. The learned magistrate proceeded to issue an order directing the land to be shared in two equal portions i.e of 2. 1 acres each. It is clear that if the order of stay is not given, it will mean that the aforesaid land will have been subdivided and transferred to the Respondent who in turn may dispose of same to third parties. It is trite law that title acquired by third parties is protected under S. 93 of the law of Succession Act. That protection given by law means that the Appellant’s appeal will be rendered nugatory if the order for stay is denied in that the land in dispute will have been put out of the reach of the Appellants. The other question which the court must consider is whether the appeal is arguable. I have looked at the grounds of appeal set out in the Memorandum of Appeal and find that one of the grounds raised is to the effect that the trial magistrate had no jurisdiction to determine a claim based on trust within the succession proceedings. With respect, I think that is a serious arguable point which need to be determined.
In the end I find the motion to be well founded. It is allowed as prayed save that costs shall abide the outcome of the appeal.
Dated and delivered this 20th day of May 2011.
J.K. SERGON
JUDGE
In open court in the presence of the Respondent. No appearance for the Appellant.