Silas Towett Kamuren & another (suing as the administrators of the Estate of David Yatich Kamuren) v Moses Simatwa & another [2019] KEELC 3343 (KLR)
The bottom line
#A Kitale court dismissed a man's bid to reopen a land case because he waited seven months and built a house on land belonging to a deceased person's estate.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay of execution
The court lacks jurisdiction where no notice of appeal has been filed or exhibited
Order 42 Rule 6(2) requires that an appeal be pending or a notice of appeal filed as a precondition. The court found none on record and none exhibited in the supporting affidavit. The alternative prayer for stay pending a succession cause does not fit the rule's framework either, and the applicant's status relative to the estate undermined his standing. Consequently the stay prayer failed at the jurisdictional threshold.
Setting aside ex-parte proceedings and judgment
The application is refused for inordinate, unexplained delay and lack of merit
The hearing commenced on 14/6/2018 when defendants and their counsel failed to attend. The application was lodged some 7 months later, with no satisfactory explanation, despite defendants being represented on 4/10/2018 and 1/11/2018. The court found the conduct calculated to delay litigation. The 2nd defendant's affidavit was absent, and the 1st defendant could not speak for him.
Intermeddling with a deceased person's estate
The 1st defendant's construction of a permanent house on the suit land during the suit constituted intermeddling under Section 45(1) of the Law of Succession Act
The court found the house was hurriedly built during the pendency of proceedings despite a court order of 24/8/2018 directing construction to cease. The 1st defendant did not demonstrate he was an 'authorised person' under Section 45(1). As against the administrators, clothed with statutory power over the estate property, the applicant's position was untenable and he had no right of audience.
Legal principles established
#- An application for stay of execution under Order 42 Rule 6 requires a filed appeal or notice of appeal; absent such notice, the court lacks jurisdiction to entertain the stay prayer
- No person other than an authorised person may take possession of, dispose of, or otherwise intermeddle with free property of a deceased person under Section 45(1) of the Law of Succession Act
- Setting aside ex-parte proceedings must be sought within a reasonable time and requires a satisfactory explanation for delay
Court orders
#- 1.The application dated 11/2/2019 is dismissed
- 2.Costs of the application to the respondents/plaintiffs
- Jurisdiction invoked
- Order 42 Rule 6(2) and 6(4) of the Civil Procedure Rules; inherent jurisdiction to set aside ex-parte proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas Towett Kamuren & another (suing as the administrators of the Estate of David Yatich Kamuren) v Moses Simatwa & another [2019] KEELC 3343 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3343/eng@2019-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.