[2014] KEKC 3 (KLR)
The court found that the applicant, as a beneficiary of plot no 4 at Manyata Arab, Kisumu, is entitled to access and entry into the property as per the judgment and distribution of the estate. The respondent's claim of having appealed and paid costs was unsupported by sufficient evidence, as the receipts filed did...
Source-derived case information.
- Citation
- [2014] KEKC 3 (KLR)
- Parties
- Applicant: Wahib Saad Ali; Respondent: Salma Kassim
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 22 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Access and Security
- Outcome
- Application allowed; orders granted as prayed.
- Legal Topics
- Succession Distribution, Beneficiary Rights, Access to Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wahib Saad Ali
Applicant
Salma Kassim
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Access and Security
Legal Issues
- 1 Whether the applicant, as a beneficiary, is entitled to access and entry into plot no 4 at Manyata Arab, Kisumu.
- 2 Whether the respondent's claim of appeal and payment of costs constitutes a valid ground to deny access to the applicant.
- 3 Whether the respondent has provided sufficient proof of payment of costs and stay of execution.
Ratio Decidendi
The court found that the applicant, as a beneficiary of plot no 4 at Manyata Arab, Kisumu, is entitled to access and entry into the property as per the judgment and distribution of the estate. The respondent's claim of having appealed and paid costs was unsupported by sufficient evidence, as the receipts filed did not demonstrate any deposit of money in court pending the appeal. Furthermore, the respondent had not obtained a stay of execution of the decree. Therefore, the court granted the orders sought by the applicant, allowing access and entry to the property and directing the OCS Kisumu Central Police Station to provide security.
Court Disposition
Application allowed; orders granted as prayed.
Orders
- The applicant is granted entry and access into plot no 4 at Manyata Arab, Kisumu.
- The OCS Kisumu Central Police Station is to provide security for the applicant's entry and access.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE KADHIS COURT AT KISUMU
SUCCESSION CAUSE NO 22 OF 2011
WAHIB SAAD ALI...........................................APPLICANT
VS
SALMA KASSIM.............................................RESPODANT
RULING
This is a ruling for application dated 13th June filed
applicant seeking this court to issue an order of entry and access into plot no 4 at manyata Arab kisumu , the OCS kisumu central police station to provide security and lastly that cost of the application to be provided for .
The applicant based on the ground that:
1-. applicant is a beneficiary of plot no 4 at manyata arab kisumu; two, that judgement had been entered and the estate distributed.The applicant had been denied access and entry by respondent into part of the house in plot no 4.
further grounds were adduced in his further affidavit filed on 24th June 2014 annexed with a calling letter from the high court of appeal no 32 of 2013 .
The respondent claimed that he had appealed against the judgment
and he had paid cost of the appeal. During the hearing of application on 18th June 2014 the respondent did not produce any proof for the cost and it was ordered that he files the proof before the delivery of this ruling
The receipts filed on 30th June 2014 by the respondent do not show any proof of money deposited in court pending hearing of the appeal . besides that the respondent has not filed stay of execution of the decree issued by this court
Therefore it is the finding of this court that the cost have not been paid as alleged by the respondent and this court therefore grants the orders as prayed for by the applicant.
R/ A -30 days
Read and delivered this 3rd day of JULY 2014in the presence of.
Mursal.M.Sizi---------kadhi
court Assistant-----Rehema Akidah
presence of;
-MURSAL .M .SIZI- KADHI 11
-Court Assistant -Rehema Akidah,
Petitioner-
-Respondent