Case ID:175522

Leah Wairimu Waweru & 7 others v Waithera Mohoyo & Ruffas Mwangi Kamau [2021] eKLR

Case Metadata

Case Number:

Civil Application 27 of 2020

Parties:

Leah Wairimu Waweru, Martha Nyambura Kangthe, Milka Wangari Kamau, Joshua Njuguna Kamau, David Ngugi Kamau, Albert Gicheru Kamau, Simon Gicheru Kamau & Ruth Mumbi Kamau v Waithera Mohoyo & Ruffas Mwangi Kamau

Date Delivered:

21 May 2021

Case Class:

Civil

Court:

Court of Appeal at Nyeri

Case Action:

Ruling

Judge(s):

Wanjiru Karanja, Jamila Mohammed, Patrick Omwenga Kiage

Citation:

Leah Wairimu Waweru & 7 others v Waithera Mohoyo & Ruffas Mwangi Kamau [2021] eKLR

Case History:

An application seeking stay of execution of the ruling/order of the High Court of Kenya at Nakuru (Matheka, J.) dated 2nd September, 2020 in H. C. Succession Cause No. 76 of 2015

Court Division:

Civil

County:

Nyeri

History Docket No:

Succession Cause 76 of 2015

History Judges:

Teresia Mumbua Matheka

History County:

Nyeri

Case Outcome:

Application strike out

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NYERI

(CORAM: KARANJA, KIAGE & J. MOHAMMED, JJ.A)

CIVIL APPLICATION NO. NYR. 27 OF 2020

BETWEEN

LEAH WAIRIMU WAWERU ..............................1

ST

APPLICANT

MARTHA NYAMBURA KANGTHE.................2

ND

APPLICANT

MILKA WANGARI KAMAU .............................3

RD

APPLICANT

JOSHUA NJUGUNA KAMAU............................4

TH

APPLICANT

DAVID NGUGI KAMAU......................................5

TH

APPLICANT

ALBERT GICHERU KAMAU.............................6

TH

APPLICANT

SIMON GICHERU KAMAU...............................7

TH

APPLICANT

RUTH MUMBI KAMAU.....................................8

TH

APPLICANT

AND

WAITHERA MOHOYO ...................................1

ST

RESPONDENT

RUFFAS MWANGI KAMAU..........................2

ND

RESPONDENT

(An application seeking stay of execution of the ruling/order of the High Court of Kenya at Nakuru (Matheka, J.) dated 2nd

September, 2020

in H. C. Succession Cause No. 76 of 2015)

*******************

RULING OF THE COURT

All eight applicants have through the firm of Gichuki Kenga, filed this application seeking an order of stay of execution of the ruling/order of Justice Mumbua Matheka dated 2nd September, 2020 pending the hearing and determination of the intended appeal.

The intended appeal arises from a Succession matter whereby the applicants filed a Notice of Motion on 26th November, 2016 seeking, in the main, orders that the confirmed grant of letters of administration issued to the two respondents as administrators of the estate of the late Livingstone Kamau Ruffus be revoked and that new administrators be appointed in their place.

Having heard the application, the learned Judge came to the conclusion that the parties have failed to establish grounds for revocation of the Grant as provided for under

Section 76

of the Law of Succession Act and consequently dismissed the application.

The applicants were aggrieved by the said order and intend to file an appeal against the same. However, they have not yet filed the appeal and having realized that the statutory time within which they should have filed the appeal had lapsed, they have moved this Court vide

Civil Application No. 27

of 2020

seeking extension of time. That is therefore, an acknowledgment that there is no Notice of Appeal filed at the appropriate registry in this matter. There is an attachment of a document headed “

Notice of Appeal

” attached to the supporting affidavit but the document bears no Court stamp nor is it signed by the deputy registrar of the Court, and clearly the same has neither been filed nor lodged at the registry. An application for extension of time is yet to be heard by a single Judge as required by law.

It is axiomatic and it bears repeating that in respect of applications predicted on

Rule 5(2)(b)

of this Court’s Rules, this Court draws its jurisdiction from the Notice of Appeal filed in compliance with

Rule 75

of the Court of Appeal Rules. See

Safaricom Limited

–v- Ocean View Beach Hotel Limited &

2 others

,

Civil Application No. 327 of 2009.

Rule 5(2)(b)

provides as hereunder:-

“

Subject to sub rule (1), the institution of an appeal

shall not operate to suspend any sentence or to stay execution, but the court may

-

i. In any civil proceedings,

where a Notice of Appeal

has been lodged in accordance with Rule 75

, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the court may think just.”

(Emphasis ours)

Rule 75

on the other hand requires a notice of appeal to be filed within 14 days of the date of the decision against which it is desired to appeal. Clearly therefore, there being no Notice of appeal filed pursuant to Rule 75, there is no competent appeal before us on which this application can be premised. In the circumstances, we find the application incompetent and strike it out accordingly with no order as to costs this being a family matter.

DATED AND DELIVERED AT NAIROBI THIS 21

ST

DAY OF MAY, 2021

W. KARANJA

......................................

JUDGE OF APPEAL

P. O. KIAGE

.....................................

JUDGE OF APPEAL

J. MOHAMMED

......................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR