[2022] KEHC 11439 (KLR)

Duu & 2 others v County Government of Busia (Probate & Administration 205 of 2009) [2022] KEHC 11439 (KLR) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11439 (KLR)

Republic of Kenya

In the High Court at Busia

Probate & Administration 205 of 2009

JR Karanja, J

July 6, 2022

Between

John Oloo Duu

Petitioner

and

Charles Okoth Nyabera

1st Applicant

Isaac Okoth Nyabera

2nd Applicant

and

County Government of Busia

Interested Party

Ruling

1. The application dated 28th February 2022 comes under the provisions of the Civil Procedure Rules in particular Order 42 Rule 6 of the Rules.Rule 49 and 73 of the Probate & Administration Rules as well as Article 159 (2) (d) of the Constitution are also invoked.The applicants/objectors seek orders of stay of the orders made by this court on 17th February 2022 pending hearing and determination of an intended appeal.The grounds for the application are set out in the chamber summons and are fortified by the averments of the second applicant in the supporting affidavit dated 28th February 2022. The respondent/interested party opposed the application on the basis of the grounds and averments contained in the replying affidavit of its chief officer, Everline Teresia Mbingi, dated the 28th April 2022.

2. The hearing of the application proceeded by way of written submissions. Both parties filed their respective submissions through their respective advocates i.e. Gabriel Fwaya Advocate and Rodgers Sekwe, County Solicitor/Counsel.After due consideration of the application on the basis of the supporting grounds and the rival submissions, this court holds the opinion that the application to the extent that it seeks a stay of the ruling made herein on 17th February 2022 is misconceived and untenable for the basic reason that the resultant effect of the ruling was dismissal of the application dated 3rd June 2021 by the interested party for review and/or setting aside of the ruling of the court made on 27th November 2014. The impugned ruling did not order performance of any act against any of the parties therein.The allegations by the applicants that the ruling was based on error in relation to the rendering of accounts was irrelevant for the purposes of the application which is not one for review.

3. The merit or otherwise of the intended appeal was also an irrelevant factor for purposes of this application for stay. In any event, while rendering its impugned ruling the court did not grant any order capable of being stayed. In other words, the orders arising from the ruling (if any) were not positive orders for which stay could be granted.In the cited case of Co-operative Bank of Kenya Ltd. Vs. Banking, Insurance and Finance Union (K) (2015) eKLR, the Court of Appeal clearly stated that:-“An order for stay of execution pending appeal is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgement. The delay of performance presupposes the existence of a situation to stay-called a “positive order” either an order that has not been complied with or has partly been complied with.”

4. In the concluding paragraph 7 and 8 of the impugned ruling, the court found that the effect of the revocation of the material grant was to revert the estate property to its original owner and as there was no longer a valid grant in existence respecting the estate of the deceased the application by the interested party was baseless, misconceived and incompetent before the court and was therefore dismissed with each party bearing their own costs.The court stated that even in the absence of the automatic revocation of the first grant and the application for revocation the record indicated that the grant was for revocation on the court’s own motion in exercise of its inherent powers under Rule 73 of the Probate & Administration Rules if only for the ends of justice and to prevent further abuse of the court process. The parties were informed that they had no otherwise than to re-commence the whole process of petitioning for grant of letters of administration.

5. Clearly, the ruling did not amount to a positive order capable of being stayed.The fear by the applicants that the ruling would cause the cancellation of ownership titles created from the estate property or otherwise was unfounded as there was no specific order from the court for cancellation of titles and/or rectification of the register. In any event, such fear could only be addressed in the right forum other than a succession cause or at most, by an appeal against the impugned ruling which course the applicants intend to take as implied in this application.The instant application is seeking stay of negative orders. In Western College of Arts & Applied Sciences Vs. Omaga & Others [1976] KLR 63, it was held by the Court of Appeal that the court has no jurisdiction to issue stay pending appeal where there was nothing in the order of the court that can be enforced.

6. And in Kanwal Sarjit Singh Bhiman Vs. Keshavji Jivai Shah (2008) eKLR, The Court of Appeal while dealing with an application for stay of a negative order held as follows:“The 2nd prayer in the application is for stay of execution of the order of the superior court made on 18th December, 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which was incapable of execution save in respect of costs only.”

7. Similarly, the impugned ruling in this matter was a negative order incapable of execution, hence, unavailable for grant of an order of stay.Besides the foregoing it is doubtful whether Order 42 of the Civil Procedure Rules is among the provisions under the Civil Procedure Act which apply to the procedure under the Law of Succession Act.In sum, the present application is wanting on merit and is hereby dismissed with costs to the respondent/interested party.

J.R. KARANJAHJ U D G EREAD & SIGNED THIS 6TH DAY OF JULY 2022