- In this matter the applicant seeks a stay of execution orders of the orders issued by the Hon. Magistrate on 30.10.2024 in Webuye Principal Magistrate’s Court in Succession Case No. 6 of 2015 pending the hearing and determination of the appeal.
- I have considered the rival affidavits and the law as provided under order 42 Rule (6) of the Civil Procedure Rule. The Ruling on the subject of this application was delivered on 30.10.2024. The application was filed on 5.11.2024. There is no inordinate day. On substantial loss, the applicant avers that he will be affected by the execution of the orders could lead to injustice as there is already wanton wasting of the estate as shown in a photo showing trees being felled. He also avers that he had already distributed the estate. The Respondent on the other hand avers that the applicant has failed to diligently administer the estate. She explains in detail what has been happening in the matter before the lower court.
- Succession matters are very emotive matters, I have weighed the pros and cons of staying execution of the lower court orders. The applicant has raised a ground in the memorandum of appeal that the application being res judicator. This is an issue to be decided at the appeal. He also claims that there is wanton wastage of the estate. However, the loss can’t be quantified, and the security for costs too. I find that in the interest of justice, there is a need to stay the execution of the orders dated 30.10.2024 pending the hearing and determination of the appeal. Costs shall abide by the appeal. The appellant shall file a record of appeal within 30 days from the date of this Ruling.
Dated, Signed, and Delivered at BUNGOMA on this 13th day of February 2025.
R.E. OUGO
JUDGE
In the presence of:
Mr. Kapten For the Applicant
Respondent - Absent : Wilkister - C/A