[2019] KEHC 11124 (KLR)
The court found that the order appointing the 1st and 3rd respondents as trustees of the Wakf had already been executed, as evidenced by the registration of the title in their names alongside the applicant. Consequently, the application for stay of execution was overtaken by events and there was nothing left to...
Source-derived case information.
- Citation
- [2019] KEHC 11124 (KLR)
- Parties
- Applicant: Aliya Zahran; Respondent: Khadija Khamis Shafi; Respondent: Kulthum Khamis Shafi; Respondent: Fadhila Zahran Mohamed; Respondent: Shaffa Khamis Shaffi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 26 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- M Thande
- Legal Topics
- Wakf Trusteeship, Appointment of Trustees, Stay of Execution, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aliya Zahran
Applicant
Khadija Khamis Shafi
Respondent
Kulthum Khamis Shafi
Respondent
Fadhila Zahran Mohamed
Respondent
Shaffa Khamis Shaffi
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the order appointing new trustees of the Wakf pending appeal.
- 2 Whether the application for stay has been overtaken by events due to execution of the order.
- 3 Whether the applicant has demonstrated sufficient grounds for stay, including arguability of the appeal and risk of the appeal being rendered nugatory.
Ratio Decidendi
The court found that the order appointing the 1st and 3rd respondents as trustees of the Wakf had already been executed, as evidenced by the registration of the title in their names alongside the applicant. Consequently, the application for stay of execution was overtaken by events and there was nothing left to stay. The court further noted that, in the absence of a valid appeal or notice of appeal filed in the prescribed form, it lacked jurisdiction to grant the stay sought. The applicant also failed to demonstrate that the intended appeal was arguable or that it would be rendered nugatory if stay was not granted. Therefore, the application for stay was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 26.7.17 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
FAMILY DIVISION
HC NO. 26 OF 2016 (OS)
IN THE MATTER OF:THE TRUSTEE ACT
IN THE MATTER OF:THE WAKF OF MWANA MISHI BINTI AZIZ BIN JUMA
IN THE MATTER OF:APPOINTMENT OF NEW TRUSTEES
BETWEEN
ALIYA ZAHRAN.............................................................APPLICANT
VERSUS
KHADIJA KHAMIS SHAFI.......................................RESPONDENT
KULTHUM KHAMIS SHAFI.....................................RESPONDENT
FADHILA ZAHRAN MOHAMED.............................RESPONDENT
SHAFFA KHAMIS SHAFFI ......................................RESPONDENT
RULING
1. Aliya Zahran, the Applicant by her Application dated 26. 7.17 seeks orders that the execution/enforcement of the Ruling and Order made on 30. 6.17 be stayed pending the hearing and determination of the intended appeal. The Applicant also seeks costs.
2. The Applicant states she is the only surviving beneficiary of the Wakf of Mwana Mishi Binti Aziz Bin Juma (the Wakf). By the orders made on 30. 6.17, the Court appointed Khadija Khamis Shafi and Fadhila Zahran Mohamed,the 1st and 3rd Respondents respectively as trustees of the Wakf yet they are not beneficiaries thereof. According to the Applicant, the effect of the order violates Article 40 of the Constitution by irregularly and unlawfully making the Respondents beneficiaries of the Wakf. The Applicant avers that her intended appeal is arguable and if stay is not granted, the same will be rendered nugatory. The Applicant further states that she is apprehensive that execution of the order will irreparably affect and negate her rights as a successful party in the appeal in that the 1st and 3rd Respondents are not beneficiaries of the Wakf and cannot in law be appointed as trustees. It will be extremely difficult or impossible for her to obtain compensation from numerous 3rd parties who will claim under the Respondents or enforce a decree of vacant possession against numerous 3rd party beneficiaries in the very likely event that the appeal succeeds because 3rd paties will claim to be beneficiaries of the Respondents through a Court order. She further asserts that the Application was made without delay.
3. The Respondents have opposed the Application by way of a replying affidavit sworn on their behalf by the 1st Respondent on 19. 3.18. It is averred that the Application has been overtaken by events and execution of the orders in the Ruling has taken place. A copy of title to support this assertion was exhibited. It is further argued that this Court has no jurisdiction to order stay of execution pending appeal when there is no appeal filed as the annexed memorandum of appeal does not conform to the statutory form F as stipulated by Rule 86(3) of the Court of Appeal Rules, 2010 hence rendering the same incurably defective. The Applicant has failed to demonstrate that the intended Appeal is arguable and has high chances of success and that it would be rendered nugatory if stay is not granted. To the Respondents, the Ruling can be easily be reversed on Appeal. It is further argued that there is no positive and enforceable order which can be the subject matter of the said Application for stay, as the Order sought to be stayed merely seeks to preserve the Wakf property, which does not belong to any of the parties personally. The Respondents prayed that the Application be dismissed with costs.
4. In the orders of 30. 6.17, the Court did appoint the 1st and 3rd Respondents as trustees of the Wakf in addition to the Applicant. The Respondents have exhibited a copy of the Title Number Mombasa/Block XXXVII/13 which is registered in the names of Khadija Khamis Shafi and Fadhila Zahran Mohamed the 1st and 3rd Respondents respectively and Aliya Zahran, the Applicant as trustees of the Wakf of Mwana Mishi Binti Aziz Bin Juma. This demonstrates that the order of 30. 6.17 has been executed. In the circumstances, the Application dated 26. 7.17 has been overtaken by events and there is nothing to stay. The horse has bolted! In the premises, the Application is dismissed but with no order as to costs.
DATED, SIGNED and DELIVERED in MOMBASA this 15th day of February 2019
_____________
M. THANDE
JUDGE
In the presence of: -
……………………………....... for the Applicant
………………………………....for the Respondents
……….…………………………Court Assistant