[2014] KEHC 7717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL SUIT NO. 1161 OF 2001

ELIZABETH WARUGURU KANG’ETHE.......................SUBSTITUTED PLAINTIFF

VERSUS

1. ELIZABETH WANJIKU KHAINGA

2. GITATHURU KARIOBANGI CO. LTD..........................................DEFENDANTS

R U L I N G

1. Thenotice of motiondated16th January 2014by the 1stDefendant seeks, in the main prayer, a stay of execution of decree pending appeal. The intended appeal is against the decree of the court passed on 18thDecember 2013. That decree gave the Plaintiff judgment in the following terms –

“(a) It is hereby declared that the grant issued in favour of the 1stDefendant in respect of L.R. No. 209/8553/141 (IR No. 86070) was obtained fraudulently, and the same is null and void.

(b) The 1stDefendant’s registration as proprietor of L.R. No. 209/8553/141 (IR No. 86070) is hereby cancelled, and the Substituted Plaintiff shall be registered as proprietor of the same.

(c ) The 1stDefendant shall give to the Substituted Plaintiff possession of the L.R. No. 209/8553/141 free from any encumbrances (apart from such as may be permitted by law) within fourteen (14) days of delivery of this judgment. In default the 1stDefendant shall be forcibly evicted and the Substituted Plaintiff put in possession.

(d) The 1stDefendant shall pay to the Substituted Plaintiffmesne profitsof KShs 35,000/00 per month from the date of filing suit until possession of L.R. No. 209/8553/141 is vested in her.

(e) The Plaintiff shall have costs of the suit.”

2. The application is expressed to be brought undersections 3Aand63 (c)&(e)of theCivil Procedure Act, Cap 21andOrder 42, rule 6of theCivil Procedure Rules(theRules). It is supported by the affidavit of the 1stDefendant.

3. Grounds for the application include –

(i) That part of the suit property is her residential house, which she occupies with her children, and if execution proceeds they would be rendered homeless.

(ii) That the suit property has been their only source of income.

(iii) That it has emerged that the 2ndDefendant was not accorded opportunity to participate in the case yet it had evidence that would have assisted the court.

4. The application is opposed bygrounds of opposition filed on 21stJanuary 2014. Those grounds include -

(i) That the application is incompetent and bad in law.

(ii) That it has no merit in that the strict requirements of Order 42, rule 6 (2) have not been met.

(iii) That if the order sought is granted, it will greatly prejudice the Plaintiff as she would be denied the fruits of her judgment.

5. In asupplementary affidavit sworn on10thFebruary 2014the 1stDefendant deponed that she could raise the decretal amount if given time.

6. I have considered the submissions of the learned counsels appearing, including the cases cited. For purposes of the present application there is an appeal already filed, in that notice of appeal was duly lodged on 24thDecember 2013 under theCourt of Appeal Rules.

7. Apart fromsufficient causeunder rule 6(1)of Order 42, the 1stDefendant must satisfy the conditions set out insub-rule (2)of the same rule which provides -

(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.”

8. I will start with the issue of delay in applying. None has been pleaded, and none is apparent. I am satisfied that the application was filed without unreasonable delay. The two issues to occupy the court are substantial loss and security.

Substantial Loss

9. The 1stDefendant has deponed at paragraphs 3, 4, 5 and 6 of her supporting affidavit that the suit property, which comprises residential premises, is occupied by herself together with her children and grandchildren; that if the decree is executed they will all have no home; that she is a widow who lost her husband in 1998 and she single-handedly fends for the children and the children of her deceased son and daughter; that the suit property has been her and her dependants’ only source of income; that if the decree is executed she will not be able to educate the grandchildren; and that she is old (76 years) and hypertensive, and that execution of the decree will aggravate her condition.

10. The Plaintiff’s answer to these issues is as follows (paragraphs 4, 5 and 13) of the replying affidavit –

(i) That it is not true that the 1stDefendant resides in the suit property as she resides at Githurai with one of her sons.

(ii) That the suit property comprises 8 residential units, 7 of which the 1stDefendant has rented out while her son occupies the 8th.

(iii) That the Plaintiff is equally an old lady.

11. Indeed it was common ground at trial that all the residential unites comprising the development in the suit property except one were always rented out since the days of the original owner, the 1stDefendant’s late husband, who occupied the 8thunit with one of his wives (not the 1stDefendant) and their children as well as the 1stDefendant’s children. (The 1stDefendant was then living at her husband’s rural home at Kakamega.) All these children are now grown-up and who are presumably taking care of themselves. The 8thunit is apparently the one occupied by the 1stDefendant’s son.

12. The plea that the 1stDefendant and her dependants would be rendered homeless if she were to be evicted thus rings hollow, especially bearing in mind the fact (established at trial) that the 1stDefendant forcibly took the property from the Substituted Plaintiff’s late husband (the purchaser for valuable consideration from the 1stDefendant’s late husband). The same answer obtains in respect to the plea of loss of income should the decree be executed. This was income which the 1stDefendant forcibly took away from the Substituted Plaintiff’s late husband, and which would have accrued to her upon the death of her husband soon after he filed this suit.

13. In the judgment herein the court found that the Defendants committed a fraud upon the Substituted Plaintiff’s late husband by registering the property in the 1stDefendant’s name while knowing fully well that her husband had sold the same to the Substituted Plaintiff’s husband over 20 years before.

14. I am of course alive to the possibility that my findings of fact and law could be overturned by theCourt of Appeal, but in the particular circumstances of this case set out in the judgment, I am not satisfied that the 1stDefendant has demonstrated that she stands to suffer substantial loss. What will be taken away from her in execution of the decree is simply what she should not have taken away from the Substituted Plaintiff’s husband in the first place!

Security

15. The judgement not only decreed the suit property to the Substituted Plaintiff; it also awarded her substantialmesne profitsat the rate of KShs 35,000/00 per month from the date of filing suit. By the 1stDefendant’s own calculation that is over KShs 5 million already.

16. The 1stDefendant has not offered any security at all in respect to the property itself. As for the monetary award, she stated categorically at paragraph 7 of the supporting affidavit that she cannot raise it at all as she is a widow. Her turn-around in the supplementary affidavit and submissions to the effect that given sufficient time she would raise the decretal sum cannot be serious. She did not even indicate what that sufficient time might be – two months?, 12 months?, five years?

17. Upon the issue of security also I would refuse the application.

18. By way of demonstration of sufficient cause the 1stDefendant has alleged that the 2ndDefendant was deliberately kept out of the proceedings herein, and that the court did not benefit from important evidence that it would have produced. It is to be noted that hearing of the case took a long period of time before two judges in turn. What prevented the 1stDefendant from alerting the 2ndDefendant about the case if indeed the 2ndDefendant was never served with process? More importantly, what prevented the 1stDefendant from calling (or having summoned) officials of the 2ndDefendant as her witnesses at the trial? And why is it that the 2ndDefendant has not yet, even now, made any application at all? I do not consider that this allegation establishes sufficient cause at all to enable the court to grant the order sought.

19. For the above reasons the 1stDefendant’s application for stay of execution is refused. It is dismissed with costs. The interim stay of execution now in place is hereby vacated. It is so ordered.

DATED AT NAIROBI THIS 18THDAY OF MARCH 2014

H P G WAWERU

JUDGE

DELIVERED THIS 21stDAY OF MARCH 2014