[2011] KEHC 3146 (KLR)
The court found that the objector failed to provide sufficient grounds for the grant of a stay of execution. The objector did not clarify why he should exclusively occupy and develop the entire estate to the exclusion of other beneficiaries, especially since the deceased died intestate and the court had not...
Source-derived case information.
- Citation
- [2011] KEHC 3146 (KLR)
- Parties
- Applicant: Nkirote M'Miriti; Respondent: Francis Kithinji
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 119 of 2003
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Succession, Grant Confirmation, Stay of Execution, Intestate Estate, Beneficiary Rights
- 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
Nkirote M'Miriti
Applicant
Francis Kithinji
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the objector is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the objector demonstrated sufficient grounds for the grant of stay, including irreparable loss and likelihood of success on appeal.
Ratio Decidendi
The court found that the objector failed to provide sufficient grounds for the grant of a stay of execution. The objector did not clarify why he should exclusively occupy and develop the entire estate to the exclusion of other beneficiaries, especially since the deceased died intestate and the court had not determined the distribution of the estate. The court was not satisfied that the objector would suffer irreparable loss or that the appeal had a high probability of success. Accordingly, the application for stay was dismissed and costs awarded to the petitioner.
Court Disposition
application dismissed
Orders
- The application for stay of execution dated 14th December 2010 is dismissed.
- Costs are awarded to the petitioner.
Full Case Text
Judgment text and source record
31 paragraphs
SUCCESSION
·Stay of execution pending appeal.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 119 OF 2003
IN THE MATTER OF THE ESTATE OF THE LATE M’MIRITI M’ATUNE (DECEASED)
NKIROTE M’MIRITI ………………….......…………….. PETITIONER
VERSUS
FRANCIS KITHINJI ………………….......…………….. OBJECTOR
RULING
Francis Kithinji (objector) has filed summons dated 14th December 2010. By that summons he seeks stay of judgment of this court delivered on 22nd October 2010. He seeks stay pending the determination of his appeal in the Court of Appeal.He seeks to stay the transfer of the deceased property as per the grant confirmed in the said judgment. The basis of seeking the orders of stay is as stated in his affidavit that he has high chances of success in his appeal. He also deponed that he has received threats of eviction from the properties of his estate. The estate comprises of the following properties:-
1)Abothuguchi/Kariene/266
2)Abothuguchi/Kariene/161
3)Abothuguchi/Kariene/1742
4)Abothuguchi/Ruiga/1252
5)Plot No. 4B-Gatimbi Market
The objector stated in his affidavit in support of his application thus:-
“That I have extensively and intensively developed the land which I occupy and I am therefore apprehensive that if the petitioner executes the threats she has been issuing, I stand to suffer irreparable loss and damage of which can (sic) never adequately compensated (sic) with costs.”
The deceased was survived by the following:-
1)Nkirote M’Miriti - widow
2)Milliam Ncece – daughter (married)
3)Esther Gaceri“ “
4)Mary Kanana“ “
5)Priscilla Kithira“ “
6)Stella Kagure“ “
7)Francis KithinjiSon
The objector as can be seen from the above list was not the only beneficiary of the estate of the deceased. Since the deceased died intestate and because the court had not made a determination on who was to inherit the estate of the deceased the objector fails to clarify why he would occupy and develop the whole estate of the deceased to the exclusion of the other beneficiaries. I have considered the affidavit of the objector and that of the petitioner and I find no basis for the orders that are sought in the summons dated 14th December 2010. That application is dismissed with costs being awarded to the petitioner.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE