REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

Prob & Admin Cause 157 of 2001

TABUTANY CHERONO KIGET …………………………… DECEASED

AND

RAEL CHEMUTAI MAYIEK …………………………. 1^ST PETITIONER

CHRISTINE CHEPNGENY LEITING …………….… 2^ND PETITIONER

VERSUS

GRACE CHEMUTAI KIGET ………………………….……. OBJECTOR

RULING

On the 29^th of April, 2005, this court delivered its judgment in respect of the distribution of the deceased estate.  The Petitioners in this succession cause were dissatisfied with the said decision and have appealed to the Court of Appeal.  They have now filed an application under Order XLI rule 4 of the Civil Procedure Rules seeking the orders of this court to have the said judgment stayed pending the hearing and determination of the appeal now pending before the Court of Appeal.  The grounds in support of the application are stated on the face of the application.  The application is supported by the annexed affidavit of Rael Chemutai Mayiek.  The objector has filed grounds of opposition, in opposition to the application.

At the hearing of the application, I heard the submission made by Mr. Kimanga, Learned Counsel for the petitioners and Mr. Korir, Learned counsel for the objector.  The main complaint of the petitioners is that they are apprehensive that their appeal would be rendered nugatory if stay is not granted as they are in fear that the objector would sell the suit property that was awarded to her by this court.  The objector has submitted that the apprehension expressed by the petitioners was not founded on fact.  She has submitted that there is no proof that the objector intended to sell the land which was awarded to her by this court.

Having carefully read the pleadings filed by the parties in this application and considered the submissions made by the counsel for the parties thereto, the issue for determination by this court is whether the application sought by the petitioners can be granted.  The petitioners have made an application for stay of execution of the judgment of this court under Order XLI rule 4 of the Civil Procedure Rules.  I have carefully read the Law of Succession Act and the Probate and Administration Rules made there under.  Rule 63(1) of the Probate and Administration Rules provide that only orders V, XI, XV, XVIII, XXV, XLIV and XLIX of the Civil Procedure Rules shall be applicable in proceeding under the Law of Succession Act.  Order XLI of the Civil Procedure Rules is not among the rules of the Civil Procedure that can be applied in proceeding filed under the Law of Succession Act.  The application before me, its merit notwithstanding, is therefore incompetent. 

The petitioners have urged this court to invoke its inherent jurisdiction and grant the applicants the order of stay of execution sought.  I however hold that the inherent jurisdiction of this court can only be invoked where there is no specific provision of the law and where the justice of the case demands.  In the instance application, there are provisions under the Law of Succession Act which the petitioners could have invoked if they wanted such an order to be issued in their favour by this court.  Inherent jurisdiction of this court cannot be invoked where wrong provisions of the law have been cited.

For that reason, I find no merit in application for stay of execution filed by the petitioners.  I consequently dismiss the same with costs to the objector.

Dated at Kericho this 30^th day of September 2005.

L. KIMARU

JUDGE