[2022] KEHC 17128 (KLR)

Adam v Noor (Civil Appeal E042 of 2021) [2022] KEHC 17128 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17128 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal E042 of 2021

AC Mrima, J

November 3, 2022

Between

Hawa Amin Adam

Applicant

and

Habiba Mohamed Noor

Respondent

Ruling

1. This ruling is in respect of an application by way of a notice of motion dated November 3, 2021. The application was taken out by the appellant.

2. The application sought the following orders: -1. That this application be certified urgent and service in the first instance be dispensed with, and prayer No 2 herein be granted in the interim.2. That the enforcement of the certificate of confirmation over the estate of the late Maow Ibrahim be stayed pending the hearing and determination of this application.3. That upon the inter parte hearing of this application, this honourable court be pleased to confirm the stay of enforcement of the confirmed grant while pending the hearing and determination of this appeal.4. That costs be provided for.

3. The application was supported by the grounds appearing on the body thereof and an affidavit sworn by the applicant herein, Hawa Amin Adam, on November 3, 2021.

4. There is on record a replying affidavit allegedly in response to the application. The affidavit was sworn on January 21, 2022. The affidavit has two persons appearing on its body. One of them is Hawa Amin Adam who was described in paragraph 1 as the respondent. This person did not sign the affidavit. The other person is one Amina Hassan Ahmed. The second person was the one who signed the affidavit before a Commissioner for Oaths in Nairobi.

5. Having carefully considered the replying affidavit, this court is of the position that the affidavit is seriously problematic. It appears that the deponent who signed the affidavit at the end thereof is different from the one who described herself as swearing the affidavit in the opening paragraphs of the affidavit. It, therefore, means that the contents in the affidavit were reiterated by a different person from the one who signed it. Further, none of the said two persons was the respondent and there was no deposition on their representation on the respondent in the application.

6. The instant state of affairs reveals that there is no nexus between the respondent in this matter one Habiba Mohammed Noor and the two persons. It also remains doubtful if the said Hawa Amin Adam may be the applicant/appellant in the matter or it is a different person who has similar name as the appellant in the matter.

7. The replying affidavit on record cannot stand the test of a valid disposition. At the minimum, it contravenes the provisions of order 19 of the Civil Procedure Rules, 2010.

8. Whereas a court has powers to receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality under order 19 rule 7 of the Civil Procedure Rules, the nature of the irregularities in the replying affidavit go far beyond those which may be described as any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.

9. The irregularities at hand are grievous and go to the root of the affidavit as they render the true deponent of the said affidavit not able to be ascertained.

10. One of very practical challenges posed by the instant replying affidavit is which deponent is to called for examination if need arises. Will it be Hawa Amin Adam or Amina Hassan Ahmed? It cannot definitely be both.

11. The upshot is that the replying affidavit cannot stand and is hereby struck out.

12. Having done so, this court is still under a legal duty to consider the application notwithstanding that there is no formal opposition to it.

13. As the application sought a stay of execution of an order of a court, the starting point is order 42 rule 6(2) of theCivil Procedure Rules which gives the conditions precedent to granting a stay of execution order.

14. The conditions are that the applicant must demonstrate that it will suffer substantial loss unless the order is made, the application is made without any unreasonable delay and the applicant offers security for the due performance of the decree. (See Antoine Ndiaye vs African Virtual University [2015] eKLR.)

15. The Court of Appeal in Butt vs Rent Restriction Tribunal [1979] KLR discussed what ought to be considered in determining whether to grant or refuse stay of execution. The court stated that the power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his or her opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

16. The applicant also referred to other decisions on the conditions to be considered by a court in stay of execution applications.

17. By parity of reasoning from the circumstances of this case, this court is of the very considered position that the application is merited. The main appeal is on the jurisdiction of a Kadhi over a succession dispute filed and pending before the Chief Magistrates Court in Kitale in Succession Cause No 36 of 2018. Whereas the dispute at Kitale was filed in 2018 and the parties herein were well aware of and took part in that matter, one of the parties filed another succession cause in Nairobi being the Kadhi’s Succession Cause No 11 of 2020.

18. It is those proceedings before the Kadhi’s Court which are impugned in this matter. Going by the nature of the issues raised in the intended appeal and with a view to forestall any unnecessary multiplicity of suits and for the prudent use of the limited judicial time, any further proceedings over the matter ought to await the final outcome of the appeal in this matter.

19. Deriving from the foregoing, the following final orders do hereby issue: -a.There be a stay of any further enforcement and proceedings based on the certificate of confirmation in Nairobi (Kashmir Court at Upper Hill) in Succession Cause No 11 of 2020. In the Matter of the Estate of the Late Maow Ibrahim Abdullahi (Deceased) or at all pending the hearing and determination of the appeal in this matter.b.The Deputy Registrar of this court shall call for the court file in Nairobi (Kashmir Court at Upper Hill) in Succession Cause No 11 of 2020 to enable further proceedings in this matter.c.Costs of the application be in the main appeal.Orders accordingly.

DELIVERED, DATED and SIGNED at KITALE this 3rd day of November, 2022. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Mr. Kiarie, Counsel for the Applicant/Appellant.Mr Yusuffor Counsel for the Respondent.Kirong/Nawatola –Court Assistant