[2016] KEHC 6711 (KLR)
The court found that the appeal is serious and concerns the distribution of the deceased's estate following confirmation of grant. If the order of distribution is executed before the appeal is heard, the appeal may be rendered nugatory. The court was satisfied that the circumstances justified the grant of a stay of...
Source-derived case information.
- Citation
- [2016] KEHC 6711 (KLR)
- Parties
- Appellant: Teresa Mwelu Muindi; Respondent: Wambua Muindi
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 253 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution of the order of distribution granted pending determination of the appeal. Costs in the appeal.
- Judges
- DW Mbuteti
- Legal Topics
- Succession Proceedings, Confirmation of Grant, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Mwelu Muindi
Appellant
Wambua Muindi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the order of distribution of the deceased's estate should be granted pending the determination of the appeal.
- 2 Whether the appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The court found that the appeal is serious and concerns the distribution of the deceased's estate following confirmation of grant. If the order of distribution is executed before the appeal is heard, the appeal may be rendered nugatory. The court was satisfied that the circumstances justified the grant of a stay of execution to preserve the subject matter of the appeal. The stay is to remain in place until the appeal is disposed of, with the expectation that the appellant will prosecute the appeal without undue delay. The parties are given liberty to apply, and costs are to be in the appeal.
Court Disposition
Stay of execution of the order of distribution granted pending determination of the appeal. Costs in the appeal.
Orders
- Stay of execution of the order of distribution of the deceased's estate granted pending disposal of the appeal.
- Parties directed to ensure the appeal is heard without undue delay.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL APPEAL NO 253 OF 2013
(FORMERLY NAIROBI HC CIVIL APPEAL NO 48 OF 2013)
TERESA MWELU MUINDI………….……...…..……………APPELLANT
VERSUS
WAMBUA MUINDI …..........................................................RESPONDENT
R U L I N G
1. The appeal pending herein is against an order of distribution of the estate of Rebecca Ndunge Kameri, Deceased made on 15/07/2013 in confirmation of grant in Thika CM Succession Cause No 316 of 2008. The parties are siblings and are among the children (and apparently the only dependents) of the Deceased.
2. This ruling concerns the chamber summons dated 14/08/2013 by the Appellant in which she seeks the main order of stay of execution of the aforesaid order of distribution pending disposal of the appeal. The application has been opposed by the Respondent (grounds of opposition filed on 13/09/2013) and replying affidavit filed on 16/09/2013.
3. By an order entered on 24/09/2014 the parties were directed to maintain the status quo. The appeal was also by the same order transferred from the High Court at Nairobi to this court.
4. On 07/04/2014 it was ordered that the application be canvassed by way of written submissions. The Respondent filed his submissions on 23/10/2013 before the Appellant filed hers on 21/08/2014. The Respondent filed further written submissions on 12/09/2014. I have considered those submissions. I have also read the supporting and replying affidavits.
5. The competence of the appeal has not been challenged in any serious manner. I have not read any submission to the effect that the appeal is not properly before the court.
6. The appeal challenges an order of distribution of the Deceased’s estate made in confirmation of grant. The identification of the persons beneficially entitled to a deceased’s estate, and determination of their respective shares, is the whole purpose of succession proceedings. That is done when the court deals with an application to confirm grant. It appears that the Appellant opposed the application to confirm the grant by filing an affidavit of protest. There must therefore have followed a hearing before the lower court leading to the order of distribution now challenged in this appeal.
7. This is thus a serious appeal, and I am satisfied that the same may be rendered nugatory if the challenged order of distribution is effectuated. I therefore have no hesitation in granting the stay sought, the same to remain in place until the appeal is disposed of. However, the Appellant must take appropriate steps to ensure that the appeal is heard without undue delay. In this connection I give parties liberty to apply. It is so ordered. Costs will be in the appeal.
DATED AND SIGNED AT MURANG’A THIS 4TH DAY OF FEBRUARY 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 12TH DAY OF FEBRUARY 2016