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Wallace Kogi Mwaura & another v. Tirus Kamau Mburu (as the Administrator Ad Litem of the Estate of Miriam Muthoni Mburu (Deceased) & Salome Wambui Gitau

(2019) JELR 94888 (CA)

Court of Appeal  •  Civil Application 178 of 2018 (Ur 146/2018)  •  8 Mar 2019  •  Kenya

Coram
Alnashir Ramazanali Magan Visram, Erastus Mwaniki Githinji, Jamila Mohammed

Judgement

RULING OF THE COURT

1. The applicants herein have approached this Court under Rule 5(2)(b) of the Court of Appeal Rules (the Rules) seeking an order of stay of execution, which they believe will preserve the substratum of the intended appeal against a judgment dated 4th May, 2018 of the High Court in Succession Cause No. 3002 ‘A’ of 2003.

In particular, they seek stay of execution of the:

a) Judgment dated 4th May , 2018 and

b) Confirmed grant of probate dated 23rd May, 2018 issued in favour of the 2nd respondent.

2. In support of the application, the 1st applicant deposed that the intended appeal is arguable in that, the learned Judge (Musyoka, J.) erred in dismissing the application for revocation of the grant of probate issued to the respondents. In doing so, the learned Judge failed to appreciate that the Zipporah Njeri Mwaura (deceased) lacked the mental capacity to make the will dated 30th November, 1988. In addition, that she had no capacity to bequeath Gatamiayu/Kamuchege/415 (suit…

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