[2024] KEHC 3729 (KLR)
The court found that if the applicant's fears materialize and the property is sold, the intended appeal would be rendered nugatory. The respondent would not suffer prejudice if the stay is granted. Therefore, to preserve the estate and ensure the appeal is not rendered academic, the court granted a stay of execution...
Source-derived case information.
- Citation
- [2024] KEHC 3729 (KLR)
- Parties
- Appellant: Daniel Okoth Wambare; Respondent: Wilfred Ochieng Wambare
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Interim stay of execution granted pending hearing of the application and appeal.
- Judges
- DO Ogembo
- Legal Topics
- Succession Disputes, Grant of Letters of Administration, Interim Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Okoth Wambare
Appellant
Wilfred Ochieng Wambare
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted to preserve the estate pending appeal.
- 2 Whether the respondent is in the process of disposing of the estate property to the detriment of other beneficiaries.
Ratio Decidendi
The court found that if the applicant's fears materialize and the property is sold, the intended appeal would be rendered nugatory. The respondent would not suffer prejudice if the stay is granted. Therefore, to preserve the estate and ensure the appeal is not rendered academic, the court granted a stay of execution of the Certificate of Confirmation of Grant and the judgment pending the hearing of the application and appeal.
Court Disposition
Interim stay of execution granted pending hearing of the application and appeal.
Orders
- An order of stay is granted in terms of prayer 3 of the application dated 22/1/2024, staying the Certificate of Confirmation of Grant issued to Wilfred Ochieng Wambare dated 20/4/2022 and the judgment of Hon. PM Limo, Benjamin B dated 1/8/2023, pending hearing of this application and appeal.
- The application is fixed for hearing on a priority basis.
Full Case Text
Judgment text and source record
19 paragraphs
Wambare v Wambare (Civil Appeal 1 of 2024) [2024] KEHC 3729 (KLR) (17 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3729 (KLR)
Republic of Kenya
In the High Court at Siaya
Civil Appeal 1 of 2024
DO Ogembo, J
April 17, 2024
Between
Daniel Okoth Wambare
Appellant
and
Wilfred Ochieng Wambare
Respondent
Ruling
1. I have considered submissions by both parties. There are allegations that the Administrator/Respondent is in the process of selling off the property in dispute, to the detriment of other beneficiaries and counter claims that allegation is not true. The parties are all physically present and confirm their respective positions.
2. Should the fears of the applicant be actualized, then the intended appeal would be rendered nugatory. On the other hand, the administrator/respondent in my view stand to suffer no prejudice should this court issue orders sought by the applicant.
3. It is for this reason that I find merit in issuing interim orders that the applicants are seeking in this application, principally to preserve the estate.
4. In the circumstances, I grant an order of stay in the terms prayed for in prayer 3 of the application dated 22/1/2024 which states that the Certificate of Confirmation of Grant of letters of Administration issued to Wilfred Ochieng Wambare and dated 20/4/2022 and the judgment of Hon. PM Limo, Benjamin B dated 1/8/2023 be stayed pending the hearing of this application and appeal. The said orders of stay to be inforce pending the hearing of this application. This application, being as urgent, as it is, is fixed for hearing on priority basis.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 17THDAY OF APRIL, 2024D. O. OGEMBOJUDGE17. 4.2024