[2008] KEHC 1560 (KLR)
The court found that the application for stay of execution was rendered moot because the property in question had already been transferred to the respondent as trustee for Kimanthi, pursuant to a certificate of confirmation. Any stay order would therefore be of no practical effect. Additionally, the alleged threat...
Source-derived case information.
- Citation
- [2008] KEHC 1560 (KLR)
- Parties
- Appellant: Rosemary Ndere Kangi; Appellant: Ann Igoki; Appellant: Teresia Wanja; Appellant: Vilginia Rwamba; Appellant: Tasiana Kina; Appellant: Mary Wawira; Appellant: Musa Mwaniki; Respondent: Francis Njeru Kogi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 85 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Stay of Execution, Trusts in Land, Succession Proceedings, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Ndere Kangi
Appellant
Ann Igoki
Appellant
Teresia Wanja
Appellant
Vilginia Rwamba
Appellant
Tasiana Kina
Appellant
Mary Wawira
Appellant
Musa Mwaniki
Appellant
Francis Njeru Kogi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal in respect of property already transferred to a trustee.
- 2 Whether the applicant has satisfied the requirements for stay of execution under Order XLI Rule 4 of the Civil Procedure Rules.
- 3 Whether granting stay would prejudice other beneficiaries not party to the application.
Ratio Decidendi
The court found that the application for stay of execution was rendered moot because the property in question had already been transferred to the respondent as trustee for Kimanthi, pursuant to a certificate of confirmation. Any stay order would therefore be of no practical effect. Additionally, the alleged threat of transfer or sale to third parties was unfounded, as the respondent, being registered as a trustee, lacked the capacity to dispose of the property. The applicants also failed to offer security for costs as required under Order XLI Rule 4, indicating a lack of seriousness in pursuing the matter. Furthermore, granting a stay would adversely affect other beneficiaries who were...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU Civil Appeal 85 of 2007
ROSEMARY NDERE KANGI……….………………..1ST APPELLANT
ANN IGOKI………….…...……………………………..2ND APPELLANT
TERESIA WANJA…….………….……………………3RD APPELLANT
VILGINIA RWAMBA…….…..….……………………..4TH APPELLANT
TASIANA KINA………..…..…………………………..5TH APPELLANT
MARY WAWIRA…….…….………………………….6TH APPELLANT
MUSA MWANIKI…….….……………………………7TH APPELLANT
VERSUS
FRANCIS NJERU KOGI……….…….……………….RESPONDENT
RULING
The applicant through Kariithi & Co Advocates has moved this court under Order XLI Rule 4 of the Civil Procedure Rules seeking an order that:-
“Pending hearing and determination of the present appeal, the honourable court be pleased to order stay of execution of the orders on 19/7/2007 in Runyenjes R.M’sSuccession Cause No.84 of 2005 and in particular that Francis Njeru do hold plot No. KAGAARI/MBUINJERU/ T.47 Stall No. 28 Kanja Market in trust for his son KIMANTHI”.
The application is premised on the 5 grounds on its face and on the supporting affidavit of Rosemary Ndere Kangi dated 15/5/2008. The same is opposed by the Respondent Francis Njeru Kogi vide his replying affidavit dated 6th June, 2008. I have considered the application, the grounds in question along with the rival affidavits and the annexures thereto.
First and foremost, I would point out that even as at the time this application was being filed, plot No.KAGAARI/MBUINJERU/T.47 had already been transferred to the Respondent herein as trustee for one Kimanthi as per the certificate of confirmation.
This rendered the application for stay as far as that plot is concerned irrelevant and any orders or stay granted pursuant to that application were of no consequence whatsoever.
Secondly, the alleged threat to transfer or sell the property to third parties is neither here nor there as according to the register, the applicant is registered as a trustee and he would be not therefore have capacity to dispose of it.
Thirdly, the applicant has not even offered security for costs as required under Order XLI to show her seriousness in the matter.
Lastly, the Judgment being appealed against affect many other beneficiaries who have nonetheless not complained and who are not party to this application. If any stay orders are granted, they would also affect them and this would complicate matters since it would be tantamount to condemning them unheard and thus breaching the rules of natural justice. For the foregoing reasons, I find that his application must fail. The same is hereby dismissed with costs to the Respondent.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this29th day of …July.2008