[2023] KEHC 26920 (KLR)

Gitau & 2 others v Kanga’ata (Succession Appeal 1 of 2023) [2023] KEHC 26920 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26920 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Appeal 1 of 2023

FROO Olel, J

December 14, 2023

Between

Luka Mwaura Gitau

1st Appellant

Virginia Wachera Mungai

2nd Appellant

Zippora Wainaina

3rd Appellant

and

John Njoroge Kanga’Ata

Respondent

Ruling

A. Introduction 1. The application before this court for determination is the Notice of Motion application dated 24th February 2023 brought pursuant to provisions of Order 42 Rule (6) of the Civil Procedure Rules, Section 47 of the Law of succession Act and all other enabling provision of law. By the said application, the Appellants/applicants seeks for orders of stay of execution of the ruling delivered on 7th December 2022 pending the hearing and determination of the appeal filed herein.

2. The application is supported by a supporting affidavit of the Appellant Luka Mwaura Gitua dated 24th February 2023, where he states that they are aggrieved by the decision of the trial magistrate to declare the respondent as a creditor to the estate and if the suit parcel is not persevered and stay orders issued, the appeal will be rendered nugatory. It was thus in the interest of justice to so grant the orders sought.

3. The Respondent did oppose this application vide, through his Replying affidavit sworn by himself John Njoroge Kang’atta dated 17th March 2023. He deponed that the applicants did not meet the legal prerequisites for granting stay of execution. In particular, the appellants had failed to demonstrate what prejudice they would suffer and/or to clearly demonstrate the nature of substantial loss/irreparable damage they would suffer if stay of execution is not granted. Further the intended appeal was not based on a money decree and therefore the appellant proposal to deposit a security for costs would not suffice. Finally, the respondent also contended that the appeal did not raise a triable issue as the grounds the basis upon which the ruling is challenged were never raised before the trial court. The respondent thus prayed that this appeal be dismissed with costs.

B. Submissions 4. The appellant submitted that this application was anchored under provisions of Order 42 Rule 6 of the Civil procedure Rules and that they had meet the legal threshold to have the orders sought granted in their favour. The appeal and this application had been filed without undue delay. On the issue of substantial loss, the appellants stated that they were likely to be disinherited of their rightful share of the deceased estate, yet it was not proved that the respondent transacted with the deceased during his lifetime. Finally, as regards security, they were willing to comply with such terms as the court may impose. Reliance was placed on Focin Motorcyle Co ltd v Ann Wambua Wangui & Ano (2018) eKLR, The matter of the Estate of Solomon Mungura Mathia, (2020) eKLR.

5. The appellants urged this court to balance the rights of both parties and do issue an order of stay of execution so as not to render the appeal to be rendered nugatory especially as there were weight issues to be determined in the appeal.

6. The respondent in opposing this appeal stated that the appellants had not sufficiently demonstrated the substantial loss or irreparable damage they were likely to suffer should the orders not be granted. Having failed to so quantify the said loss, the court should not exercise its discretion in their favour. Reliance was placed on Nicholas Stephen okaka & Ano v AlfredWaga Wesonga (2022) eKLR, James Wangalwa & Another v Agnes Nalika Cheseto (2012) eKLR & Congress Rental south Africa v Kenyatta international conference centre, Cooperative Bank of Kenya (Guarnishee) 2019 eKLR.

C. Determination 7. I have carefully considered the Application, Supporting Affidavit, the Respondent’s relying affidavit and submissions filed. The only issue for determination is whether this court should proceed grant an order of stay of execution of the trial court ruling dated 7th December 2022.

8. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security as the court may impose for the due performance of any decree or order as may ultimately be binding on the Applicant (see Butt v Rent Restriction Tribunal (1982) KLR 417 and James Wangalwa & Another v Agnes Nalika Chereto (2012) eKLR).

9. The appeal obviously has been filed within the statutory period as provided for in law, thus not late. On the issue of substantial loss, the appellant in her affidavit did depone that it was in the interest of justice to allow this application as the respondent may execute this ruling to their detriment and render the appeal to be nugatory. The respondent on the other hand submitted that the appellants had not sufficiently demonstrated the substantial loss they are likely to suffer should stay not be granted. In absence of factors clearly establishing irreparable loss no stay ought to be granted by this court.

10. In an application of this nature, the applicant should show the damage he/she would suffer if the order for stay is not granted. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss based on pleadings filed.

11. In Samvir Trustee Limited v. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where Warsame, J (as he then was) he expressed himself as hereunder:“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the Court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant…For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss…Whereas there is no doubt that the defendant is a bank, allegedly with substantial assets, the court is entitled to weigh the present and future circumstances which can destroy the substratum of the litigation…At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court. Justice requires the court to give an order of stay with certain conditions.”

12. In James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] eKLR the court expressed itself as hereunder:“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 properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. 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.”

13. The same position was adopted by Kimaru, J in Century Oil Trading Company Ltd v. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 where he stated that:“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”

14. The facts of the case clearly show that the respondent did buy this parcel of land in 2002 and the same was later formalized before the area chief in November 2013. The respondent has been in possession of the said parcel for over 20 years and from the acreage of the suit parcel, he does not claim the entire suit parcel. The respondent is only claiming one acre out of the entire parcel of 2. 9ha. It is worth noting, that the appellants elder brother (Hiuhu Njenga) had filed a succession petition where he had included the respondent as a beneficiary, but after his death, the appellants herein abandoned the said petition and filed a fresh petition, excluded the respondent.

15. No empirical evidence has been placed before court show what loss/ irreparable damage the appellants will suffer should stay not be granted nor has it been alleged that they cannot recover the sold portion of the suit parcel should this court uphold this appeal. This court does reiterate the finding by Kimaru, J in Century Oil Trading Company Ltd v. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007;“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to or different from that.”

16. The appellants have only alleged that the ruling may be executed, but have clearly failed to show which substantial loss they will suffer, should stay not be granted. They have failed to discharge/surmount the evidential burden placed on them under section 112 of the Evidence Act and the respondent has no duty to prove otherwise. See Kenya Posts & Telecommunications Corporation v. Paul Gachanga Ndarua Civil Application No. Nai. 367 of 2001; ABN Amro Bank, N.K. v. Le Monde Foods Limited Civil Application No. 15 of 2002.

D. Disposition 17. The application dated 24th February 2023 is therefore without merit. The same is dismissed with costs to the Respondent.

18. It is so ordered.

READ, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS ON THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEIn the presence of:-Mr. Kariuki for appellantMr. Kuluva for Respondent