[2005] KEHC 379 (KLR)
The court found that proceeding with the sale of the capital asset as ordered by the Kadhi Court could render the pending appeal nugatory. To preserve the subject matter and ensure the appeal is not rendered academic, a stay of execution was granted on condition that the applicants provide security in the sum of KES...
Source-derived case information.
- Citation
- [2005] KEHC 379 (KLR)
- Parties
- Appellant: Nuru Bukheit & 4 Others; Respondent: Bukheit Masoud
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Stay and Extension of Time
- Outcome
- Stay of execution granted; extension of time for service granted.
- Legal Topics
- Stay of Execution, Appeals From Kadhi Court, Probate and Administration, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nuru Bukheit & 4 Others
Appellant
Bukheit Masoud
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay and Extension of Time
Legal Issues
- 1 Whether the order of the Kadhi Court for sale of a capital asset before grant of letters of administration or probate should be stayed pending appeal.
- 2 Whether time for service of the memorandum of appeal should be extended.
Ratio Decidendi
The court found that proceeding with the sale of the capital asset as ordered by the Kadhi Court could render the pending appeal nugatory. To preserve the subject matter and ensure the appeal is not rendered academic, a stay of execution was granted on condition that the applicants provide security in the sum of KES 50,000 within 21 days. Additionally, since there was no objection and the memorandum of appeal was filed within time, the court extended the time for service, deeming the service already effected as valid.
Court Disposition
Stay of execution granted; extension of time for service granted.
Orders
- Stay of the Kadhi Court's order for sale of the capital asset pending hearing of the appeal.
- Applicants to provide security in the sum of KES 50,000 within 21 days.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL 12 OF 2005
NURU BUKHEIT & 4 OTHERS………………………………………..APPELLANT
VERSUS
BUKHEIT MASOUD ………………………….……………………...RESPONDENT
R U L I N G
The court has considered the submissions of Counsel. The Applicants wish to appeal against the order of the Kadhi Court. The Kadhi proceeded to order sale of a capital asset before a grant of letters of Administration or probate is issued in the estate. This is a matter to be decided on appeal.
While the appeal is pending the steps should not be taken which would render appeal nugatory for that reason, I order that the Kadhi order be stayed pending the hearing of the appeal. The Applicants shall give security in the sum of shs.50,000/- to secure any order that may ultimately be made against them. Security shall be furnished within the next 21 days from today. Prayer 2 in Application seeks extension of time for service of the Memorandum. The same was filed within time.
There being no objection, I extend the time for service. The service now affected shall be deemed to have been served in time.
Delivered and dated at Mombasa this 5th day of October 2005,
J. KHAMINWA
J U D G E