1.This Ruling arises from the Notice of Motion dated the 22/1/2022 and filed on the 16/2/2022 brought under Section 3 (a) and 6 of the Civil Procedure Act, Article 40 and 159 of the Constitution of Kenya, 2010 and all enabling provisions of the law.
2.The Applicant sought the singular order that the Court be pleased to stay the suit pending the hearing and determination of the Summons for Revocation or annulment of grant dated the 14/2/2019 in Succession Cause No 76 of 2014 in the Estate of Nelly Wangui Mugacha.
3.The application is premised on the grounds annexed thereto and the Supporting Affidavit of the Applicant sworn on the 22/1/2022. He deponed that the suit land Kiambaa/kihara/6773 (suit land) is a subdivision of Kiambaa/kihara/2590 previously registered in the name of Nelly Wangui Mugacha, the deceased mother of the Respondent. That the estate was succeeded vide Succession Cause No 76 of 2014 and a grant issued and confirmed on the 14/10/2015.
4.Following the confirmation of grant aforestated, Hannah Njoki Mugacha has filed Summons for Revocation of the said grant which proceedings are pending before the Succession Court in Kikuyu. That the success of the revocation of grant will put the validity of the suit land in question. Further that the non- joinder of Florence Gathoni Mugacha who is the sister of the Plaintiff and a beneficiary of the suit property renders this suit fatal. That Florence Gathoni and the Plaintiff are registered as trustees of the suit property in their capacity as administrators of the estate of Nelly Wangui Mugacha and the Plaintiff has tried to shortchange the beneficiaries by claiming the suit land absolutely as the beneficiaries continue to occupy the suit land. He urged the Court to stay the proceedings pending the hearing and determination of the Summons for Revocation in the lower Court.
5.Though on the 17/3/2022 the parties elected to file written submissions none has filed any. The Plaintiff failed to file Replying Affidavit nor written submissions in this regard the application is therefore unopposed.
6.The key issue is whether the application is merited.
7.In the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 the Court held that;
8.Further the threshold for stay of proceedings in the in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
9.I have carefully considered the reasons for stay which is that there are pending proceedings in the Succession Court with respect to the grant of succession involving the suit land now in the name of the Plaintiff. The claim of the Plaintiff in this case is that of trespass.
10.I find that the application is merited. It is allowed with no orders as to costs.
11.It is so ordered.