[2016] KEHC 1529 (KLR)
The court held that since there is a valid judgment on the distribution of the estate and there is no stay, variation, or setting aside of that judgment by any lawful order, the administrator is obligated to execute the necessary documents to effect the transfer of the estate to the beneficiaries. The mere intention...
Source-derived case information.
- Citation
- [2016] KEHC 1529 (KLR)
- Parties
- Applicant: Simon Mwaniki Gateru; Respondent: Ceasar Waweru Gateru; Respondent: Joseph Waruthi Gateru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 145 of 2009
- Procedural Posture
- Succession Cause / Ruling on Post Judgment Application for Execution
- Outcome
- application allowed
- Judges
- AG Ndung'u
- Legal Topics
- Estate Administration, Execution of Judgment, Probate and Administration, Transmission of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mwaniki Gateru
Applicant
Ceasar Waweru Gateru
Respondent
Joseph Waruthi Gateru
Respondent
Procedural Posture
Succession Cause / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the Deputy Registrar should be directed to execute documents necessary for the transfer of estate properties to beneficiaries where the administrator has failed to do so.
- 2 Whether an intention to appeal or an application for stay of execution is sufficient to halt execution of a court judgment.
Ratio Decidendi
The court held that since there is a valid judgment on the distribution of the estate and there is no stay, variation, or setting aside of that judgment by any lawful order, the administrator is obligated to execute the necessary documents to effect the transfer of the estate to the beneficiaries. The mere intention to appeal or the pendency of an application for stay does not suffice to halt execution. Therefore, the court allowed the application and directed that the Deputy Registrar execute the necessary documents to facilitate the transfer of the estate properties to the beneficiaries.
Court Disposition
application allowed
Orders
- The application dated 23rd October, 2015 is allowed in terms of prayer 2.
- The Deputy Registrar is directed to execute all documents necessary for the transfer of the properties to the beneficiaries/dependants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO. 145 OF 2009
IN THE MATTER OF THE ESTATE OF KOSIANDO GATERU MWANIKI (DECEASED)
SIMON MWANIKI GATERU................................ADMINISTRATOR/APPLICANT
VERSUS
CEASAR WAWERU GATERU................................PROTESTOR/RESPONDENT
JOSEPH WARUTHI GATERU........................................................RESPONDENT
RULING
The Notice of Motion before court in dated 23rd October, 2015. The prayers targeted by this ruling are:
1. That this court directs the Deputy Registrar to execute all the documents necessary for the transfer of the properties herein in the names of the beneficiaries/dependants
2. That costs of this application be provided for.
The application is grounded on the supporting affidavit of Ceasar Waweru Gateru. The gist of the application is that by a judgment of this court, the distribution of the Estate of Kosiando Gateru Mwaniki was decided. The Administrator has failed to execute the relevant documents to facilitate transmission. It is urged that the Deputy Registrar of this court do execute the necessary document and transfer titles to beneficiaries.
Simon Mwaniki Gateru (the administrator) has filed a replying affidavit. He depones that he intends to appeal part of the judgment of this court as he was dissatisfied with the judgment of court delivered on the 31th July, 2015 in relation to Land Reference No.NYANDARUA/SAMBUGO/2854. He indicates that he has filed an application for extension of time at the Court of Appeal. He has also given instructions to his Advocate to file an application for stay of execution.
I have considered the application and the Response thereto.
This is a straight forward application. There is a judgment of court which is not varied, stayed and or set aside by any lawful orders of court. The administrator has no option in the matter other than to execute the necessary documents.
An intention to appeal is not enough to stay execution of orders of court.
Consequently, the application dated 23rd October, 2015 is allowed in terms of prayer 2 thereof.
Orders accordingly.
Dated, Signed and Delivered at Nakuru this 2nd day of February, 2016.
A. K. NDUNG'U
JUDGE