[2023] KEHC 24700 (KLR)

Gategwa v Gategwa (Appeal E003 of 2023) [2023] KEHC 24700 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24700 (KLR)

Republic of Kenya

In the High Court at Nyeri

Appeal E003 of 2023

M Muya, J

November 2, 2023

Between

Anthony Waithaka Gategwa

Appellant

and

David Macharia Gategwa

Respondent

Ruling

1. The applicant Anthony Waithaka in his application dated 9th February 2023 seeks the following orders:-1. Spent2. That pending the hearing and determination of this application, an order of temporary injunction be issued restraining the Respondent whether by himself, employees, servants and/or agents from appropriating, distributing alienating, advertising for sale, or otherwise in any manner whatsoever interfering with all that properly belonging to the estate of the late Cecilia Wanjira Gategwa.3. That pending hearing and determination of this application, this honourable Court be pleased to issue a stay of execution of the ruling and orders made by Hon. Kibiru Chief Magistrate in Nyeri CMCC Succession No 190 of 2021 on 7th December 2022.

2. The Notice of Motion dated 17th February 2023 seeks the following orders:-1. Spent2. That pending the hearing of this application interpartes a temporary injunction be issued restraining the Respondent from detaining, interfering with and in any manner whatsoever altering or dealing with Motor vehicle registration number KAU 535 K3. That the Respondent be ordered to release Motor vehicle Registration number KAU 535K to the applicant4. That the OCS Nyeri Police Station be ordered to supervise Compliance of this Court orders.5. That this Court do make such further orders and issue any other relief it may deem just to grant in the interest of Justice.

3. The gist of the two applications is to prevent the Respondents from the use of property forming the Estate of the deceased pending the hearing and determination of the appeal.

4. The Respondent is the administrator of the Estate of the deceased. The applicant is his brother.

5. On 7th December 2020, the Nyeri Chief Magistrate confirmed the grant issued to the Respondent. There were five children of the Deceased. The Estate was to be distributed among the five in equal shares.

6. The Respondent was under a duty to sell motor vehicle registration number KAU 535K and share the proceeds equally among the children of the Deceased.

7. It is the contention of the Respondent that he cannot be restrained from performing his duties as the administrator.

8. Further that the applicant has not established and or satisfied the threshold as required in the case of Giella v Casman Brown.

9. That he has not offered security as required under order 42 of the civil procedure rules.

10. This application is on the grounds:-1. That applicant has already filed an appeal2. That substantial loss would result if the proceedings and execution are not stayed.3. That the appeal has overwhelming chances of success.4. That if the proceedings are not stayed the appeal would be rendered nugatory.

11. On the second application dated the 17th of February 2023 the grounds are :-a.That the applicant is the duly authorized beneficial owner of motor vehicle registration Number KAU 535Kb.That the applicant has been in possession of the above motor vehicle.c.That on the 16th day of February he was stopped by Police who were in the company of the Respondent and who took away the vehicle in question.d.That the vehicle was taken without any lawful basise.That a follow up with the OCS indicated that there was no complainant as regards the vehicle and they did not detain it.f.That there is apprehension that the Respondent will sell it to a third Partyg.That substantial loss would be occasioned if the motor vehicle is sold.

Analysis and Determination Issues for Determination 1. Whether the applicant has satisfied the threshold for stay of execution? 12. Order 42 rule 6 (2) of the Civil Procedure rules provides:-“No order for stay of execution shall be made under Sub rule (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 andb.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.

13. The operative word is “Substantial loss” what is substantial loss was considered in the case of James Wangalwa & another v Agnes Naliaka Cheseto (2012) eKLR Where it was held: “No doubt in law the fact that the process of execution has been put in motion, or is likely to be put in motion by itself does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached property has been sold, as is the case here does not in itself amount to substantial loss under order 42 rules 6 of the Civil Procedure rules. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal … the issue of substantial loss is the cornerstone of both Jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

14. In the court of appeal case of Kenya Shell Ltd v Kibiru and another (1986) KLR 410 it was held:- “ substantial loss in its various forms, is the cornerstone of both Jurisdictions for granting stay”

15. It is noted that the applicant states that Motor Vehicle Registration number KAU 535 K was unlawfully taken away from him. The certificate of confirmation of grant shows that the motor vehicle was to be registered in the name of David Macharia Gategwa and thereafter to be sold and the proceeds to be shared equally among the beneficiaries.

16. The applicant is among the beneficiaries. He has not shown in what way or manner in which he would suffer any loss leave alone substantial one.

17. Under order 42 rule 6 an applicant is required to offer security for the due performance of the decree.

18In the case of Mwaura Karuga t/a unit enterprises v Kenya bus services Ltd and others (2015) eKLR it was held:-"The security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant, the rule does not therefore envisage just any security.The words “ultimately be binding are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time of appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure rules includes costs and interest on the Judgment sum unless the latter two were not granted which is seldom. The security to be given is measured on that yard stick.”

19. In the present case the applicant has not offered any security.

20. On the issue of inordinate delay. It is observed that Judgment appealed from was delivered on 7th December 2022. Notice of Appeal was filed on 30th January 2022. The application was filed on 9th February 2023 which is a period of close to two months. The delay was not inordinate. However, the court has determined that no substantial loss would be suffered by the applicant if this court does not grant stay of the proceedings and or execution. Further that no security has been offered.

21. The application has no merit and it is dismissed. As this is a family matter there will be no order for costs.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT THIS 2ND DAY OF NOVEMBER, 2023. ………………………………HON. JUSTICE M. MUYAJUDGEIn the presence of:Wesonga - Appellant/ApplicantGori & Manyua RespondentCourt Assistant: Kinyua30 days R/A.