In re Estate of Haron Litaba Akhabele (Deceased) [2020] eKLR Case Summary

Court
High Court of Kenya at Kitale
Category
Civil
Judge(s)
H. K. Chemitei
Judgment Date
October 27, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: In re Estate of Haron Litaba Akhabele (Deceased) [2020] eKLR


1. Case Information:
- Name of the Case: Republic of Kenya v. Haron Litaba Akhabale (Deceased)
- Case Number: Succession Cause No. 167 of 2011
- Court: High Court of Kenya at Kitale
- Date Delivered: 27th October 2020
- Category of Law: Civil
- Judge(s): H. K. Chemitei
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court include:
- Whether the 2nd Petitioner (Applicant) should be granted leave to appeal the High Court's judgment dated 5th May 2020.
- Whether a stay of execution of the judgment and decree pending the appeal should be granted.

3. Facts of the Case:
The parties involved in this case are:
- 1st Petitioner: Sellah Khabere Litaba
- 2nd Petitioner/Applicant: Margaret Ayomba Anguko
- 1st Objector/Respondent: Japhet Osilu Litaba
- 2nd Objector/Respondent: Margaret Musari Litaba

The case arose from a succession matter concerning the estate of the late Haron Litaba Akhabale. The 2nd Petitioner filed an application on 9th July 2020, seeking to appeal a judgment issued on 5th May 2020. The Applicant contended that the judgment failed to address significant legal issues and sought a stay of execution to prevent subdivision and transfer of Land Parcel number Kakamega/Mabusi/18, which could lead to serious loss if executed.

4. Procedural History:
The application was supported by the 2nd Petitioner’s affidavit and the grounds on the face of the application. The 1st Respondent submitted a replying affidavit dated 17th July 2020, arguing that the application was unmerited and did not comply with legal provisions. The court had to determine whether it had jurisdiction to grant leave for the appeal and whether the Applicant had demonstrated potential loss if the judgment was executed.

5. Analysis:
- Rules: The court considered the Law of Succession Act, which stipulates that there is no automatic right of appeal to the Court of Appeal from the High Court's decisions in succession matters. Leave from the High Court is required for such appeals.
- Case Law: The court cited the case of Rhoda Wairimu Kioi & Another v. Mary Wangui Karanja & Another, C.A. NAI 69 of 2014, which clarified that leave to appeal is granted when there are grounds that merit serious judicial consideration. This precedent emphasized the need for finality and expedience in probate disputes.
- Application: The court found that the Applicant had filed a notice of appeal within the requisite time, even though it was initially flawed. The court acknowledged that the application for leave was made within a reasonable timeframe and that the Respondents had not shown evidence of harm that would result from allowing the appeal. The court highlighted the constitutional right of the Applicant to appeal.

6. Conclusion:
The court granted the 2nd Petitioner leave to file a notice of appeal within 14 days and allowed the main appeal out of time. However, the court rejected the request for a stay of execution of the judgment pending the appeal. The court emphasized that the appellate court could issue appropriate orders if it found the High Court's judgment untenable.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya ruled in favor of the 2nd Petitioner by granting leave to appeal the earlier judgment concerning the estate of the late Haron Litaba Akhabale. However, the court denied the request for a stay of execution, allowing other beneficiaries to enjoy the estate's usage. This decision underscores the importance of procedural correctness in succession matters and the court's commitment to ensuring that parties can exercise their right to appeal without undue hindrance.

Citations:
- Law of Succession Act, Kenya
- Rhoda Wairimu Kioi & Another v. Mary Wangui Karanja & Another, C.A. NAI 69 of 2014

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