[2023] KEHC 19244 (KLR)

FAI v AI (Civil Appeal E008 of 2022) [2023] KEHC 19244 (KLR) (23 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19244 (KLR)

Republic of Kenya

In the High Court at Garissa

Civil Appeal E008 of 2022

JN Onyiego, J

June 23, 2023

Between

FAI

Appellant

and

AI alias MA

Respondent

Ruling

1. Before me for determination is a notice of motion application dated November 21, 2022 brought pursuant to Order 42 rule 6(1)(2)(4) of the Civil Procedure Rules seeking orders that;a.Spentb.That there be stay of execution of the judgment /decree in the senior resident Kadhi-Mandera Misc case number E023 of 2021 dated September 7, 2022 or consequential proceedings in that court relating to contempt of court over the decision pending the hearing interpartes of this application or pending further orders of this court.c.That there be stay of execution of the judgment /decree in the senior resident Kadhi-Mandera Misc case number E023 of 2021 dated September 7, 2022 or consequential proceedings in that court relating to contempt of court over the decision pending the hearing and determination of the appeald.That this honourable court be pleased to issue any other order or better relief in the interest of justicee.That the costs be in the cause.

2. The application is anchored on grounds set out on the face of it and averments contained in the affidavit in support sworn by the applicant on November 21, 2022. Briefly, the appellant herein contracted an Islamic marriage with the respondent in 1989. They were blessed with six children all whom are adults save for one child now aged 16 years. Due to irreconcilable differences, the respondent pronounced Talaq against the appellant thus divorcing her. Consequently, the appellant moved to the Kadhi’s court Mandera law courts on August 19, 2021 seeking for maintenance of Kshs 30,000, Education maintenance, confirmation of the oral divorce and issuance of divorce certificate.

3. In response, the respondent sought custody of the children and orders that the appellant vacates their matrimonial home in plot no [Particulars Withheld] located at [Particulars Withheld] which is registered in the respondent’s name. After canvassing the hearing, the court delivered its Judgment on September 7, 2022 thus directing that; issuance of divorce is hereby granted to the plaintiff; the plaintiff(appellant) is ordered to vacate from plot no [Particulars Withheld] and never to set foot therein; Ocs Mandera to enforce the order;the children of the parties to stay in plot number [Particulars Withheld] and the plaintiff (appellant) and respondent to agree on visitation hours; NAI to receive maintenance from the respondent as agreed by the family.

4. Aggrieved by the said decision, the appellant filed memorandum of appeal dated September 16, 2022 seeking to set aside all orders except order (a) in relation to issuance of divorce certificate and (g) in connection with her maintenance.

5. The application for stay is in relation to all other orders except (a) and (g). It is the applicant’s averment that unless the order to vacate her matrimonial home is stayed, she was likely to suffer substantial loss as she was likely to be evicted pursuant to contempt proceedings instituted against her yet she has no other home to go with the children. She further averred that the Kadhi’s court exceeded his mandate by ordering her to vacate her matrimonial home. That she acquired the plot in question together with two other women FH and AS without the input of the respondent.

6. In response, the respondent filed his replying affidavit sworn on the February 15, 2023 thus opposing the application. When the matter came for directions, the court granted prayer 2 in the interim and parties directed to file submissions.

7. On her part, the applicant filed her submissions through the firm of Stephen G Wanyoike Advocates on June 16, 2023. It was counsel’s submission that since there is an appeal pending, the lower court contempt proceedings should await the outcome of the appeal. That the appeal has been filed within reasonable time and that if the contempt proceedings continues, the pending appeal will be rendered useless. In support of that argument, counsel made reference to the case of Abdiaziz Sheik Maad & 3 others v Governor Mandera County & 2 others (2020) e KLR.

8. Counsel further contended that if the stay order is not granted, the appeal will be rendered nugatory. To buttress that position, reliance was placed in the case of Paul Wathiru Ngure v Philip Njoroge Ngure and another (2001) e KLR.

9. On her part, the respondent filed his submissions dated May 12, 2023 through the firm of Mutua Mboya. Counsel submitted that the applicant had not satisfied the criteria for grant of stay of execution. In that respect, counsel relied on the holding in the case of Michael Ntouthi Mitheu v Abraham Kivondo Musau (2021) eKLR where the court held that a party seeking stay of execution must prove substantial loss and not mere assertions.

10. That the claim of matrimonial property ownership is an afterthought calculated at taking the property of the respondent. Counsel submitted that the applicant having sought for 90 days to vacate cannot now renege on her promise.

11. On the question that the Kadhi lacked jurisdiction to determine matrimonial property disputes, counsel referred to Section 3 of the matrimonial property Act which provides that a person who professes Islamic faith may be governed by Islamic law in all matters relating to matrimonial property. Counsel further made reference to the holding in the case of AWA –VS- HHD (2018) e KLR where the court held that both the high court and the Kadhis’s court have jurisdiction in determining matrimonial property disputes in accordance to Islamic law where both parties profess Islamic religion.

12. I have considered the application herein, submissions by both parties and their respective authorities. The only issue that emanates for determination is whether the applicant has met the threshold for grant of stay of execution.

13. Under order 42 rule 6 of the civil Procedure Rules, an applicant seeking a stay order is duty bound to prove the following elements; that he or she is likely to suffer substantial loss in the event a stay order is not granted; that the application has been filed within reasonable time; that security for due performance of the decree or order has been deposited or a proposal to do so has been made and or, whether after taking into consideration the circumstances of the case, there is any other sufficient cause to warrant the court to issue the order of stay.

14. It must however be borne in mind that to grant or not to grant a stay of execution order is a matter of discretion by the court seized of the matter. See Butt –vs- Rent Restrictions Tribunal CA No Nai 6 of 1979 where the court held that the prayer to grant stay of execution is discretionary and should be exercised in such away as not to prevent an appeal. In other words, the court must reasonably balance both the applicant’s and respondent’s interest and weigh on the merits and demerits in granting or not granting the order.

15. However, it is settled law that proof of likelihood of suffering substantial loss is the cornerstone for granting stay of execution orders. In the case of Kenya Shell Limited vs Benjamin Karuga Kabiru & another (1986) eKLR Platt J had this to say:“… it is usually a good rule to see if order XLI rule 4 of the Civil Procedure rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case unless an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without evidence it is difficult to see why the respondents should be kept out of their money.”.

16. Similar position was held in the case of Halai and another –vs- Thornton and Turpin(1963) Limited (1990) eKLR 365 where the court expressed itself that:“Thus, the Superior court’s discretion is tethered by three conditions. firstly, the appellant must establish sufficient cause; secondly, the court must be satisfied that substantial loss would ensue from a refusal to grant a stay, and thirdly the applicant must furnish security”.

17. On the question whether the appeal was timeously filed, there is no dispute. The impugned judgment was delivered on September 7, 2022 and the appeal herein lodged on September 16, 2022 and the instant application filed on November 21, 2022. This application was prompted by the contempt application seeking to commit the applicant to civil jail. Taking into account the circumstances under which the application was filed, I would find that the application was filed within reasonable time.

18. However, the most contentious issue is whether the applicant is likely to suffer substantial loss if the contempt proceedings were to continue. Contempt proceedings are criminal in nature and if found guilty, one would be subjected to serve an imprisonment term. Jail is not a bed of roses. The appellant would suffer substantial loss if the contempt proceedings continued, found guilty and then jailed and eventually the appeal succeeds.

19. Courts have consistently held that where contempt proceedings are pending, somebody’s liberty is at stake hence the prudent thing to do is to allow a litigant exhaust his or her legal redress through the appeal process. See Abdiaziz Sheikh Maa (supra) where the court held that to continue with contempt proceedings in disregard of the court of appeal proceedings would be an untidy situation likely to end up in an embarrassing situation.

20. Equally, if the contempt proceedings continue and the applicant is jailed and serves sentence, and later the appeal succeeds, it will be rendered nugatory. See African Express Airways and another v Nobel Viajes (1993) KLR. I do not find any prejudice that the respondent is likely to suffer if the order for stay is granted. In my view, the scales of justice will tilt in favour of the grant of stay orders.

21. Concerning lack of jurisdiction by the trial court, that is a matter for determination during the hearing of the main appeal. Regarding deposit of security, the applicant is ready to deposit if necessary. However, I do not find it prudent to order for any security to be deposited especially now that this is a family related issue.

22. In a nutshell, I am satisfied that the applicant has met the threshold for grant of stay of execution orders pending hearing and determination of the appeal herein.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JUNE 2023…………………….J.N. ONYIEGOJUDGE