RULING OF THE COURT
Before us is a motion on notice by Saroj Suresh Khiroya, the applicant, under rule 5(2) (b) of the Court of Appeal Rules. Bina Sanghani, ( the 1st respondent) and Suresh Ratilal Khiroya, ( the 2nd respondent ) are named as the respondents. The applicant seeks an order of stay of execution of the orders of the superior court made on 5th November, 2008, by Mwera J.
The applicant and the 2nd respondent are wife and husband respectively, and both are registered proprietors of property known as Kisumu Municipality/Block 7/88, situated within Kisumu Municipality. They became registered following a grant of probate made to the 2nd respondent of the estate of Ratilal Tribhorandas Khiroya, the father of both respondents. However, later it became clear that the aforesaid property was, as at 28th September, 1975 owned by the 2nd respondent and his mother, one Kashben, deceased, as tenants in common, and Ratilal Tribhovandas Khiroja, was merely the executor of her will. Curiousl…