[2022] KEHC 672 (KLR)

In re Estate of Isaac Marima Ole Oiyie (Deceased) (Succession Cause 14 of 2017) [2022] KEHC 672 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 672 (KLR)

Republic of Kenya

In the High Court at Narok

Succession Cause 14 of 2017

F Gikonyo, J

June 13, 2022

Between

Phyllis Wangui Oiyie

Applicant

and

Mary Wangui Oiyie

Respondent

Ruling

1. The significant orders being sought by the objector/applicant in the Motion dated 10th November 2021 are: -i.Stay of distribution of the estate herein as ordered by Hon. J.M. Bwonwon’ga in Narok Succession Cause Number 14 of 2017 pending appeal; andii.Costs of this application to abide the outcome of the appeal.

2. The application is expressed to be brought under Order 42 Rule 6 of the Civil Procedure Rulesand Sections 1A and 1B of the Civil Procedure Act, and is supported by the affidavit sworn by the objector/Applicant Phyllis Wangui Oiyie.

3. In response to the application herein, the petitioner /respondent filed a replying affidavit sworn on 19/11/2021.

Objector/applicant’s submissions. 4. The objector/applicant submitted that she stands to suffer substantial loss if the two properties are distributed and especially that the property will end up in the hands of a third party. Her contest is that the two properties would no longer be available, thus, rendering the appeal nugatory.

5. The objector/ applicant further submitted that the application was brought timely and without any inordinate delay on the part of the applicant. She stated that the final judgment was delivered on 5thoctober 2020. On 16th October 2020 she applied for review of judgment. The ruling on review of judgment was delivered on 11th February 2021. This application was made on 10th November 2021.

6. The objector /applicant relied on the following authorities;i.Order 42 rule 6(1) of the Civil Procedure Rules, 2010. ii.Kinyunjuri Muguta v Wotuku Muguta [2018] eKLR.iii.Butt v Rent Restriction Tribunal.iv.Suleiman v Amboseli Resort Limited [2004] 2 KLR 589.

Petitioner/Respondent’s submissions. 7. The petitioner/respondent submitted that the applicant has not met all the mandatory conditions set out under Order 42 Rule 6 of the Civil Procedure Rules for granting an order of stay of execution. That the applicant took nine months to file the application herein. In her view, the delay is inordinate and has not been explained. Further the applicant has not demonstrated that the respondent is about to dispose the assets allocated to her by Kimaru J. in Nairobi HC SUCC cause no. 281 of 2006 to warrant intervention of this court.

8. The petitioner/ respondent submitted that the applicant has not demonstrated that the appeal has high chances of succeeding and that if stay sought is not granted the appeal would be rendered nugatory. The applicant has not supplied a copy of the memorandum of appeal showing grounds of appeal to enable the court make a finding on the possibility of the appeal succeeding and consequently, be persuaded on the issue of stay.

9. The petitioner/ respondent urged this court to find that the applicant’s application dated 10th November 2021 lacks merit and the same should be dismissed with costs to the respondent.

10. The petitioner/ respondent relied on the following authorities;i.Order 42 Rule 6(2) of the Civil Procedure Rules.ii.Corporate Insurance Company Ltd v Emmy Cheptoo Letting & Another [2015 eKLR As Quoted in The Case of SOC Finance Company Ltd Vs Nephat Kimotho Mutua [2013] eKLR 589. iii.Equity Bank Ltd v Taiga Adams Company Ltd [2006 eKLR.iv.Halan & Another v Thornton & Turpin [1963] Limited [1990] eKLR.v.Thomas K’bahati T/A K/ Bahati & Co. Advocates v Janedra Raichand Shah[2021] eKLR.vi.Elite Intelligent Traffic System Ltd v HFC Limited; Hassan Zubeid & 2 Others (Interested Parties)[2019] eKLR.

Analysis and Determination 11. I have considered the application, the grounds thereof, the replying affidavit, the rival submissions and the law. The over-arching issue for determination is: -i.Whether execution of the judgment herein should be stayed pending appeal.

12. Under Order 42 Rule 6 of the Civil Procedure Rules, the court may for sufficient cause order stay of execution of such decree or order. The traditional considerations thereto being:1. Whether the court is satisfied that substantial loss may result to the Applicant unless the order is made;2. Whether the application has been made without unreasonable delay; and3. What security, if applicable, should the court order for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant?

13. See Antoine Ndiaye vs African Virtual University (2015) eKLR,

14. See also Butt v Rent Restriction Tribunal(1982) KLR that –“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

15. I do not hesitate to add that:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs (RWW v EKW [2019] eKLR,)

Was the application made without unreasonable delay? 16. The judgment in this matter was delivered on 5th October 2020. Subsequently, the applicant herein filed an application for review on 16th October 2020. The ruling on review was delivered on11th February 2021. The application herein was filed on 10th November 2021. This application has been brought one year after delivery of the judgment and nine months after delivery of the ruling on review. The said delay has not been explained.

17. I find that the over one (1) year delay is inordinate and has not been explained to justify the exercise of the discretion of this court.

Substantial loss 18. The objector/ applicant contends that she will suffer substantial loss if the orders sought are not granted as the two properties are distributed and especially that the property end up in the hands of a third party. The respondent on the other hand contends that the applicant has not demonstrated that the respondent is about to dispose the assets allocated to her by Kimaru J. in Nairobi HC SUCC cause no. 281 of 2006 to warrant intervention of this court.

19. It is the duty of the applicant in an application for stay of execution to establish that he/she will suffer substantial loss if the orders sought are not granted. See Machira t/a Machira & Co. Advocates v East African Standard (No 2)(2002) KLR 63.

20. Other than claiming that the properties in issue will end up in the hands of a third party, the applicant has not shown the basis of this belief or evidence to show intention to transfer the property to a third party. It was not clear the third party she was referring to. The applicant did not even annexed a notice of appeal, thus, the argument that her appeal will be rendered nugatory is founded on quick sand. In the circumstances, I find that the objector /applicant has not demonstrated that she will suffer any substantial loss.

Security 21. The other consideration is security. In the case of Arun C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates (2014) eKLR the court held that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.”

22. The objector/applicant in this matter has not offered or proposed any security that will ameliorate any loss or damage that may be suffered by the respondent.

Conclusion and orders. 23. On the basis of the reasons discussed above, I find the application dated 10th November 2021 to lack merit, and it is hereby dismissed with no order as to costs.

24. It is hereby so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS DAY OF 13TH DAY OF JUNE, 2022. F. GIKONYO M.JUDGEIn the Presence of :Machoka for Githui for Applicant/ObjectorMr. Kasaso- CAMitiambo for the Respondents