[2022] KEHC 1878 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 130 OF 2020

EUNICE NJOKI NJUGUNA..............................................................APPELLANT

VERSUS

JAMES MWAURA NJENGA.........................................................RESPONDENT

(Appeal from the judgment of the Senior Resident Magistrate’s Court at Kikuyu (Hon. G. Onsarigo, SRM) dated 23rd September, 2020 in Civil Case No. 206 of 2020)

RULING

1. EUNICE NJOKI NJUGUNA (Eunice) filed this appeal against the judgment of Principal Magistrate’s Court Kikuyu in Civil Case No. 206 of 2020. That judgment of Kikuyu Magistrate’s Court was delivered on 23rd September, 2020. That judgment determined a dispute between Eunice and James Mwaura Njenga (James). The court decreed in that case as follows:-

1. THAT the body of the deceased Margaret Njeri Njuguna be released to the defendant JAMES MWAURA NJENGA for interment at their matrimonial home in Limuru Sub-County.

2. THAT all the members of the deceased’s family are at liberty to participate in the funeral arrangements.

3. THAT the plaintiff to bear costs of the suit.

4. THAT the officer in charge Limuru Police Station to ensure peace is maintained during the burial.

2. James has deponed that, that decision determined that he was husband of Margaret Njeri Njuguna (deceased). Eunice is the mother of the deceased.

3. Eunicehas moved this Court by Notice of Motion dated 26th November, 2020. She seeks stay of execution of the judgment of Kikuyu Magistrate’s court of 23rd September, 2020. She further seeks to stay of another suit before Kikuyu court being Succession Cause No. E7 of 2020. It is common ground in that Succession Cause No. E7 Of 2020, James petitioned by for grant of letters of administrations intestate, in respect to the deceased’s estate.

4. That succession cause is a different to the suit, Civil Case No. 206 of 2020, the one which is the subject of this appeal. That is the suit relating to burial dispute. It is therefore not clear how Eunice can seek in this appeal, stay of execution of another separate and distinct action to the one which is the subject of this appeal.Order 42 Rule 6 of the Civil Procedure Rules plainly provides that stay of execution can only be sought in respect to the action appealed from. Eunice seek to stay execution of another action, other than the one the subject of this appeal.

5. It follows that the prayers in the application seeking to stay execution of Kikuyu Succession Cause No. E7 of 2020 are misconceived.

6. Although Eunice sought in one of the prayers in the application for stay of execution of the action appealed from in this appeal, that prayer is also unavailable because James deponed, and it was not contradicted by Eunice what was decreed by the Kikuyu Magistrate’s court has already been executed. James deponed that on the Kikuyu magistrate’s court issuing its judgment of 23rd September, 2020 he buried his deceased’s wife.

7. This is what he deponed:-

“THAT the honourable trial court handed down its judgment in our favour, by reiterating that the deceased was my wife. Accordingly, I proceeded to inter (sic) [internment] the remains of my wife at our matrimonial home in Limuru Sub-County.”

8. Eunice did not offer any evidence which contradicted the above depositions of James. It would follow that there cannot be stay of execution as sought by Eunice to that which has already been executed. Eunice is seeking this Court to issue orders in vain. The Court of Appeal faced with similar facts in the case WILLIAM LERIKAN KONCHELLAH & ANOTHER VS. JULIUS TABARAI OLE MAITO TAMPUSHI (2014) eKLR stated:-

“We are not being asked to issue orders of inhibition against Registrar from making any entries in the Register against the land. We are being asked to issue stay of execution orders. Yet the respondent says and it is not disputed that the execution has already taken place and we are shown the auctioneer's report on the same. That being the case what are we to stay? Mr. Gichaba says there are some other matters that could be stopped, Mr. Morintat says no part of execution remains and the auctioneer's report supports him. In our view, the law is clear, courts do not act in vain. As Mr. Gichaba has not shown us substantive part of execution that is still pending, and as we see now, we cannot make orders of stay of execution for the same will be orders in vain.

9. In the end and in view of the above finding, the order of this Court is that the Notice of Motion dated 26th November, 2020 is dismissed with costs.

10. At the reading of this Ruling a date will be given for directions on the hearing of this appeal.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

CORAM:

COURT ASSISTANT : MAURICE

FOR APPELLANT : - MS. WANJIRU HB MR. KIMANI

FOR RESPONDENT : - N/A

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE