[2021] KECA 579 (KLR)
The Court found that the High Court's ruling simply dismissed the applicant's motion for rectification of the grant without making any positive or executable order. As such, there was no order capable of execution, and therefore, the relief of stay of execution was not available. The Court further noted that the...
Source-derived case information.
- Citation
- [2021] KECA 579 (KLR)
- Parties
- Applicant: Elizabeth Wangari Ngugi; Respondent: Janet Murugi Njugei; Respondent: Peter Romanus Kamunyu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E533 of 2020
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- FI Koome, DK Musinga
- Legal Topics
- Succession Proceedings, Rectification of Grant, Stay of Execution, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wangari Ngugi
Applicant
Janet Murugi Njugei
Respondent
Peter Romanus Kamunyu
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal from the dismissal of her summons for rectification of grant.
- 2 Whether the High Court's dismissal order is capable of execution and thus amenable to a stay order.
- 3 Whether the intended appeal is arguable and whether it would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that the High Court's ruling simply dismissed the applicant's motion for rectification of the grant without making any positive or executable order. As such, there was no order capable of execution, and therefore, the relief of stay of execution was not available. The Court further noted that the applicant failed to satisfy the dual requirements for stay under Rule 5(2)(b): the intended appeal was not shown to be arguable, and there was no risk of the appeal being rendered nugatory. Consequently, the application for stay was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 28th December, 2020 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, (P), KOOME & MUSINGA, JJ.A.)
CIVIL APPLICATION NO. E533 OF 2020
BETWEEN
ELIZABETH WANGARI NGUGI.......................................................................APPLICANT
AND
JANET MURUGI NJUGEI.......................................................................1STRESPONDENT
PETER ROMANUS KAMUNYU.............................................................2NDRESPONDENT
(Being an application for stay of execution pending the hearing and determination of
an intended appeal from the ruling of the High Court of Kenya
at Nairobi (Achode, J.) dated 30thNovember, 2020
in
H.C. Succ. Cause No. 103 of 1992)
***************************
RULING OF THE COURT
By a ruling dated 30th November, 2020 in H.C Succ. Cause No. 103 of 1992 Achode, J. dismissed the applicant’s summons for rectification of the confirmed grant over the estate of Njungei Kamunyu (deceased).
Aggrieved by that decision, the applicant filed the current application for stay of execution of those orders as well as stay of further proceedings in the succession cause. The basis of the application has been stated in the application itself and written submissions to be that the applicant intends to challenge the aforesaid ruling on appeal to this Court as evinced by a notice of appeal to that effect; that the intended appeal is arguable; and that it would be rendered nugatory, if it succeeds after execution of the decree.
The respondents for their part have filed a replying affidavit and submissions in opposition to the application, in which they have insisted that the trial court never made any order capable of execution; that the applicant is a vexatious litigant who has brought numerous applications to the detriment of the rest of the beneficiaries; and that having been part of the consent endorsed by all the beneficiaries, it was in bad faith for the applicant to apply for the rectification of the grant.
Though we cannot trace the notice of appeal on record we believe it was filed because the applicant has alluded to it as annexed and marked EWN3. The respondents have too not complained.
Whether to grant the relief of stay of execution is a matter of judicial discretion guided by the two well-known principles; arguability of the appeal or intended appeal and whether the appeal or intended appeal, if successful will be rendered nugatory. It is settled too that for an application for stay to succeed it must simultaneously satisfy both principles; that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous. We emphasise that, whether the application is for an order of stay of execution, injunction or stay of further proceedings, the above consideration are the same.
It has been settled by a long line of decisions by this Court that an order of stay of execution is not available where the decision to be challenged is one that merelydismissed the action without making any positive order. See Kanwal Sarjit Singh Dhiman vs. Keshavji Juvraj Shah[2008] eKLR. Achode, J. in the ruling to be challenged, simply dismissed the applicant’s motion for rectification without making any orders requiring the applicant to do or to abstain from doing any act. It is an order that is incapable of being executed.
Though it is not in our place at this stage to consider the likely merits of the intended appeal, looking at the manner the learned Judge exercised her discretion in the construction and application of section 74 of the Law of Succession Act to the summons for rectification, it is doubtful that the intended appeal will be arguable.
Ultimately, the application dated 28th December, 2020 having failed the test prescribed by Rule 5(2)(b) is accordingly dismissed with no orders as to costs being a matter involving family members.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2021.
W. OUKO, (P)
...................................
JUDGE OF APPEAL
M. K. KOOME
...................................
JUDGE OF APPEAL
D. K. MUSINGA
..................................
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
Signed
DEPUTY REGISTRAR