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KadhiAllowedNot stated in judgment· [2014] KEKC 3 (KLR)

Wahib Saad v Ali Salma Kassim [2014] KEKC 3 (KLR)

Kadhis' Court
3 July 2014
MSMursal M. Sizi
290 words in judgment
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The bottom line

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Kenya's Kisumu Kadhis' Court granted a beneficiary access to inherited property because the respondent proved neither payment of appeal costs nor a stay of execution.

What this practically means

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Executive summary

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This is a ruling of the Kadhis' Court at Kisumu delivered by Kadhi Mursal M. Sizi on 3rd July 2014 on an application dated 13th June 2014. The applicant sought an order of entry and access into plot no. 4 at Manyata Arab Kisumu, an order that the OCS Kisumu Central Police Station provide security, and costs of the application. The applicant grounded the application on being a beneficiary of the plot, on judgment having been entered and the estate distributed, and on the respondent denying him access to part of the house. In a further affidavit filed on 24th June 2014, the applicant annexed a calling letter from the high court of appeal no. 32 of 2013. The respondent opposed the application, claiming he had appealed against the judgment and had paid the costs of the appeal. At the hearing on 18th June 2014 the respondent produced no proof of the alleged payment, and the court directed him to file proof before delivery of the ruling. The receipts he filed on 30th June 2014 did not show any money deposited in court pending the hearing of the appeal. The court further noted that the respondent had not filed a stay of execution of the decree issued by the court. On these findings, the court held that costs had not been paid as alleged and granted the orders as prayed for by the applicant, with a review/application period of 30 days. The ruling was read and delivered in the presence of Court Assistant Rehema Akidah.

Key legal issues

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01

Whether the respondent had paid costs of the appeal

Holding

Costs had not been paid as alleged; receipts did not show money deposited in court and no stay of execution was filed

Reasoning

The respondent claimed he had appealed and paid costs. He was ordered at the hearing on 18th June 2014 to file proof of payment before delivery of the ruling. The receipts filed on 30th June 2014 failed to show any money deposited in court pending the appeal, and the respondent had not filed a stay of execution of the decree, so the claim of payment failed.

p. 1
02

Whether the applicant should be granted entry and access to plot no. 4

Holding

Orders granted as prayed since judgment had been entered, the estate distributed, and the applicant was denied access by the respondent

Reasoning

The applicant established he was a beneficiary of plot no. 4, that judgment had been entered and the estate distributed, and that the respondent denied him access to part of the house. With the respondent's cost-payment claim disproven and no stay of execution in place, the court found no basis to withhold the access orders.

p. 1

Legal principles established

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  • A respondent who alleges he has appealed and paid costs must produce proof of money deposited in court and a stay of execution before denying a beneficiary access to the distributed estate

Court orders

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  1. 1.Order of entry and access into plot no. 4 at Manyata Arab Kisumu granted as prayed
  2. 2.The OCS Kisumu Central Police Station to provide security as prayed
  3. 3.Costs of the application provided for as prayed
  4. 4.Review/Application period of 30 days (R/A - 30 days)
Jurisdiction invoked
Not stated in judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wahib Saad v Ali Salma Kassim [2014] KEKC 3 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2014/3/eng@2014-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.