[2022] KEHC 393 (KLR)

Anyanda & another v Luyundi; Anyanda & another (Objector) (Succession Cause 417 of 1992) [2022] KEHC 393 (KLR) (Family) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 393 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Succession Cause 417 of 1992

AO Muchelule, J

May 9, 2022

Between

Edward Anyanda

1st Applicant

Mathew Luyundi

2nd Applicant

and

Grace Mwayitsi Luyundi

Respondent

and

Mabel Anyanda

Objector

Maureen Khadievi Anyanda

Objector

Ruling

1. The is an old dispute. The deceased Charles Anyanda Luyundi died intestate on 16th April 1991. He left properties which included:-a.House No. 82/42 in Donholm;b.Kakamega Town Block 11/1;c.Isukha/Shirere/153;d.Isukha/Shirere/122;e.piece of land at Shivagala measuring 4 Hectares;f.Makupa Farm 8 acres;g.Isulu Farm – 8 acres;h.Malinya residence;i.Kwale/Galu/Kinondo/94;j.Plots Nos. 1589, 1590 and 1519 Bungoma Ndivisi andk.Kilifi/Mtwapa/III/682

2. The deceased’s first wife Hellen predeceased him, leaving the following children:-a.Edward Anyanda – 1st applicant;b.Beatrice Anyanda;c.Mabel Anyanda - (1st objector);d.Maurice Anyanda;e.Mathew Luyundi - (2nd applicant);f.Allan Anyanda;g.Maureen Khadievi Anyanda - (2nd objector)

3. The dispute relates to the petitioner/respondent Grace Mwayitsi Luyundi whom the deceased begun staying and cohabiting with on 27th July 1985, and who stated that she got married to him under Luhya customary law; that dowry was paid and they got two children:-a.Nelly Anyanda; andb.Faith Anyanda.There was an affidavit sworn on 11th January 1986 by the deceased and the respondent to say that they were married.

4. The applicants and the objectors disputed that the deceased and the respondent were married, or that any dowry was paid. They stated that the deceased and the respondent were infact related and were forbidden by custom from marrying. This dispute was heard by Justice Ali-Aroni who on 25th June 2020 returned the verdict that the deceased and the respondent were married and got the two children, and that both her and the children were beneficiaries of the estate of the deceased.

5. The applicants were aggrieved by the judgment and filed a notice of appeal dated 30th June 2020 to challenge the same at the Court of Appeal. The notice of appeal was served. The applicants then filed a notice of motion dated 12th December 2021 seeking the stay of execution of the judgment pending the hearing and determination of the appeal. The respondent, who had grant of letters of administration issued to her on 25th October 2007, had on 8th November 2007 sought the confirmation of the grant. In the application for stay of execution, the applicants stated that they stood to suffer substantial loss if the motion was not allowed. They further feared that the appeal would be rendered nugatory. They stated that they had a good appeal and did not think that stay would prejudice the respondent. They swore that they had brought the application without delay.

6. The respondent’s response was that the appeal was not arguable and had no substance. She complained that it had taken 1½ years following the appeal to file the present application, and that, in any case, the appeal had not been served and no record of appeal had been served. Lastly, that the applicants were busy disposing of property of the estate.

7. The application was substantially brought under Order 42 rule 6 of the Civil Procedure Rulesthat provides as follows:-“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”

8. The court’s discretion to order stay of execution is fettered by three conditions. The applicants have to demonstrate that they will suffer substantial loss if stay is not granted. They have to show that the application has been brought without unreasonable delay, and, lastly, they have to furnish security for the due performance of the decree that may ultimately be binding on them. In the instant case, no security has been offered. The appeal was filed on 30th June 2020, and this application was filed on 12th December 2021. This was about 1 ½ years later. There was no attempt to explain this delay in filing the application. This delay, I find, was inordinate.

9. Substantial loss is at the core of the jurisdiction to stay the execution of a decree that the respondent has obtained (James Wangalwa & another v Agnes Naliaka Cheseto [2012]eKLR). The applicants have to show that they will be irreparably affected and the appeal rendered nugatory if they do not obtain stay. It has been stated in the foregoing that this dispute has remained in court for a very long time, since 1992. The bottom line is that the applicants do not consider the respondent to be their step-mother, or to have been married to their deceased father, and do not want her to benefit from the estate. However, it is acknowledged that resulting from the cohabitation between their late father and the respondent two children were born, and which children, on account of the law, are beneficiaries with the same standing as the applicants.

10. I consider that the applicants are exercising their undoubted right of appeal. The court has to make sure that the appeal, if successful, should not be rendered nugatory (RWW v EKW[2019]eKLR). At the same time, however, the respondent has a hard-won judgment and decree whose fruits she is entitled to enjoy. The court has to balance these competing interests.

11. Lastly, I consider that the complaint by the respondent that application was merely intended to delay the pending distribution of the estate of the deceased, because, since the lodging of the appeal, no record of appeal has been served. There was no response to this complaint. The applicants did not demonstrate their keenness to prosecute the appeal by filing and/or serving the record of appeal. I reiterate that whether or not to grant stay entails the exercise of the court’s discretion, and all the facts of the case have to be taken into account.

12. Everything considered, I find that the application is not meritous. I dismiss it.

13. This is a family dispute. Each side will bear own costs.

DATED and DELIVERED electronically at NAIROBI this 9THday of MAY 2022. A.O. MUCHELULEJUDGESUCC. CAUSE NO. 417 OF 1992 RULING Page 3