[2012] KEHC 3825 (KLR)
The court found that since the applicant has appealed the Succession Cause decision and obtained a stay of execution in that matter, it is just and equitable to grant a stay of execution in this case as well, limited to the flat currently occupied by the applicant. This avoids conflicting court orders and preserves...
Source-derived case information.
- Citation
- [2012] KEHC 3825 (KLR)
- Parties
- Plaintiff: Njuguna Ngaruiya; Plaintiff: Margaret Kabura Ngayuiya; Respondent: Victor Katana & 36 Others; Applicant: Margaret Wairimu Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 607 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed in part
- Judges
- FI Koome
- Legal Topics
- Stay of Execution, Succession Disputes, Possession of Property, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njuguna Ngaruiya
Plaintiff
Margaret Kabura Ngayuiya
Plaintiff
Victor Katana & 36 Others
Respondent
Margaret Wairimu Kimani
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the ruling delivered on 21st November 2011 pending appeal.
- 2 Whether allowing the applicant to remain in occupation of one flat would conflict with orders in the related Succession Cause.
- 3 Whether the plaintiffs, as administrators, are entitled to collect rent and consolidate the estate pending appeal.
Ratio Decidendi
The court found that since the applicant has appealed the Succession Cause decision and obtained a stay of execution in that matter, it is just and equitable to grant a stay of execution in this case as well, limited to the flat currently occupied by the applicant. This avoids conflicting court orders and preserves the applicant's rights pending determination of her appeal. The plaintiffs, as administrators, retain the right to collect rent from the other flats and manage the estate, but the applicant is restrained from interfering with this process. The balance of convenience and the need to avoid prejudice to either party support maintaining the status quo until the appeal is resolved.
Court Disposition
application allowed in part
Orders
- Pending determination of the applicant's appeal, the applicant is allowed to occupy one flat (that she has been occupying) without interference by the plaintiffs.
- The applicant shall not collect rent from any tenant on LR No. 209/2389/63 and 209/2389/72 residential flats within Mlango Kubwa area in Nairobi or interfere with the plaintiffs' collection of the said rent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL & LAND CASE 607 OF 2010
NJUGUNA NGARUIYA
MARGARET KABURA NGAYUIYA................................PLAINTIFFS
VERSUS
VICTOR KATANA & 36 OTHERS...........................RESPONDENTS
RULING
By a ruling delivered on 21st November 2011, the defence by the 25th defendant, MARGARET WAIRIMU KIMANI (the applicant) was struck out. The plaintiffs’ notice of motion dated 23rd May, 2012, was allowed in terms of prayers numbers 2, 3, 4, 5 and 6 thereafter.
On 5th December, 2011, the applicant filed a notice of motion which is expressed to be brought under Sections 3A and 63 of the Civil Procedure Act.The applicant is seeking for a stay of execution of the ruling of court dated 21st November, 2011. This application is premised on grounds that the applicant is dissatisfied with that ruling and she intends to appeal against the same. Further the applicant has applied for certified copies of proceedings and decree for purposes of appeal. Secondly and more importantly this matter is connected with another matter H.C.SUCC.C. NO. 275 OF 2007 which declared that the applicant was not an heir to the estate of the late Naomi Kabura Ngaruiya (deceased).
The applicant has appealed in that Succession Cause and was granted a stay of execution. If the stay of execution is not granted in this matter, it will conflict with the order made in the Succession Cause and jeopardize the applicant’s rights to the flat she has been occupying.
This application was opposed by the respondent. Mr Gacheru, learned counsel for the respondent, relied on a preliminary point of objection and a replying affidavit sworn by the plaintiff.
I have given considerable thought to the issues raised in this application. On 15th December, 2011, I granted the applicant’s stay of execution in respect of the one flat that she has been occupying and directed that the applicant should not collect or impede the collection of rents from the other flats within the suit premises which is being undertaken by the plaintiff’s as administrators of the estate of the late Naomi Kabura. In my considered view, that order still commends itself to remain in force until the applicant’s appeal is determined or there are other orders.
I have taken in to consideration the fact that this matter emanates from a Succession Cause. This court took into account the judgment in the Succession Cause that declared the applicant was not an heir to the estate of the deceased. The plaintiffs, as the administrators of the deceased’s estate, are entitled to take possession and to consolidate the estate of the deceased. Since that decision is under challenge, I am satisfied that the applicant should continue occupying the flat until the appeal is determined.
The Notice of Motion is, therefore, allowed in the following terms:
“(a)Pending the determination of the appeal by the applicant in the Court of Appeal, the Applicant is allowed to occupy one flat (that she has been occupying) without interference by the Plaintiffs. Similarly the applicant shall not collect rent from any tenant on LR No. 209/2389/63 and 209/2389/72 residential flats within Mlango Kubwa area in Nairobi or interfere with the Plaintiff’s collection of the said rent.
(b)Cost of this application shall abide the appeal.”
Ruling read and signed this 30th day of March, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 15th December, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceeded to write and append my signature thereto in my new capacity.