In re Estate of Mswabah Karama (Deceased) (Succession Cause 168 of 2008) [2017] KEKC 18 (KLR)
The bottom line
#A Kenyan Kadhi's Court refused to pause estate eviction proceedings, ruling the application was filed by an improperly appointed lawyer and that filing an appeal doesn't automatically stop execution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of motion dated May 9, 2016 was competent, given the question of who was properly on record for the applicant
- 2.Whether a stay of proceedings and/or execution should be granted pending the hearing and determination of High Court Civil Appeal No. 29 of 2015
- 3.Whether the eviction orders from Mombasa/Block XLI/174 were directed at the applicant and whether she would suffer damage absent a stay
- 4.Whether the respondent's prayer for orders that the applicant hand over possession of Mombasa/Block XVII/1275 could be granted in this application
Key legal issues
#Competence of the application due to representation
The application is incompetent because Mr. Aboubakar was not properly on record for the applicant.
Mr. Olaba had come on record for the applicant by notice of appointment dated September 15, 2014. Mr. Aboubakar filed his notice of appointment on May 9, 2016, the same day as the application, with no application for change of advocates and no leave of court, which was required since the main petition had already been determined. The application was therefore incompetent.
Whether stay of proceedings and execution should be granted
No basis for stay was established; the eviction order was not directed at the applicant and she could suffer no damage.
The applicant's complaint centred on eviction from Mombasa/Block XLI/174, but that property was allocated to her together with the petitioner, Dhukne and Swalhe, and the eviction order was not issued against her. The petitioner even invites her to the house. Her right of appeal is protected and exercised, but filing an appeal does not act as a stay, and no appeal was proved to have been filed in the High Court registry.
Respondent's request for handover of Mombasa/Block XVII/1275
The court declined to grant those orders in this application.
The respondent sought orders compelling the applicant to hand over possession of Mombasa/Block XVII/1275, which had been awarded to him and others. The court held that such orders were not an issue in the stay application and that the respondent should prosecute his already-filed application for execution.
Legal principles established
#- An advocate cannot come on record for a party after determination of the main petition without an application for change of advocates and leave of court; an application filed through an improperly appointed advocate is incompetent.
- Filing of an appeal does not operate as a stay of proceedings or execution; an appeal must be lodged within thirty days, and an extension of time is a matter for the High Court with leave.
- While a losing party has a right of appeal, the winning party is entitled to enjoy the fruits of victory and litigation must come to an end.
Court orders
#- 1.The application is incompetent and lacks merit; it is dismissed with costs
- 2.Regarding the respondent's prayer for orders against the interested party, they may list their application for execution for necessary orders; those orders are not an issue in this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Kadhis' court over its own pending succession proceedings; appeal lies to the High Court
Relief refused
#Stay of proceedings and/or execution pending the hearing and determination of High Court Civil Appeal No. 29 of 2015
The application was incompetent because the advocate who filed it was not properly on record, and on the merits the eviction order was not directed at the applicant and no damage was shown; filing an appeal does not operate as a stay.
Respondent's prayer for orders that the applicant hand over possession of Mombasa/Block XVII/1275
Those orders were not an issue in this application; the respondent should list his pending application for execution.
Costs
The application is dismissed with costs (costs awarded to the respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is no application for change of advocates and leave of court as required by law as the main petition had been determined. For this reason the application is incompetent.
It is trite law that Filing of appeal does not act as stay.
while the aggrieved party has right to appeal, the winning party is entitled to enjoy the fruits if his victory and litigation must come to an end.
The application is incompetent, lacks merit. It is hereby dismissed with costs.
Regarding the respondent's prayer for orders against the interested party, they may list their application for execution for necessary orders. Those orders are not an issue in this application.
Issues in the judgment
#The judgment contains typographical errors in quoted text, e.g. 'sufier' for 'suffer' and 'afidavit' for 'affidavit'.
The judgment refers to the respondent both in the masculine ('He deponed') and in a manner suggesting multiple respondents; the case title/case number of the original cause is not clearly stated in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Mswabah Karama (Deceased) (Succession Cause 168 of 2008) [2017] KEKC 18 (KLR)", Case Analysis (2016). Succession Cause – High Court Civil Appeal No. 29 of 2015 (stay application therein). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2017/18/eng@2017-09-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.