[2023] KEHC 25370 (KLR)

In re Estate of Jacob Kiliru Asava (Deceased) (Succession Cause 429 of 2010) [2023] KEHC 25370 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25370 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Cause 429 of 2010

REA Ougo, J

November 16, 2023

N THE MATTER OF THE ESTATE OF JACOB KILIRU ASAVA (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATION

Between

Judith Musimbi Kiliri

Petitioner

and

Christine Vihenda Kiliru

1st Objector

Chrispo Kisanya Kiliru

2nd Objector

Ruling

1. Christine Vihenda Kiliru, the applicant herein, has filed an application dated the 29th of June 2023. The application is brought under sections 1A, 1B, and 3A of the 3 Civil Procedure Act cap 21, Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules 2010. She seeks the following orders that;i.There be a stay of execution of the ruling delivered on the 25th of April 2023 and its consequential orders or further proceedings pending the hearing of and determination of the intended appeal.ii.Cost of the application be provided for.

2. The application is supported by the affidavit of the applicant plus grounds on the face of the application. The applicant avers as follows; that she is aggrieved by the court ruling delivered on the 25th April 2023. She intends to appeal to the Court of Appel. On the 27th of June 2023, she received a letter dated the 16th day of June 2023 from the County Survey Office to wit that the Surveyors from the County Office Bungoma would be visiting the site to undertake the survey on the 30th June 2023 from 10. 00 am. The visit is in tandem with the said ruling in respect of parcel number LR no Bungoma/ Kiminini/ 245. She will suffer substantial loss if the application is not allowed. She has an arguable appeal with high chances of success which will be rendered. The application was filed without delay and she is ready to follow any direction issued by the court. It is in the best interest that the application be allowed.

3. The application is opposed. Judith Musimbi Kiliru, the respondent filed a replying affidavit dated the 18th September 2023. She depones as follows; the applicant filed a notice of appeal but has not yet filed the appeal. This application is filed to delay the implementation of the ruling dated the 25th of April 2023. The applicant has not demonstrated how the intended appeal she claims has a high chance of success. If the application is allowed the applicant should be ordered to deposit a sum of money equivalent to the value of the suit property as security. She seeks the dismissal of the application.

Determination 4. I have considered the affidavits filed by the parties plus their oral submissions. The only issue for determination is whether I should stay execution of the ruling made on the 25th of April 2023.

5. Order 42 Rule 6 of the Civil Procedure Rules provides for a stay of execution pending appeal, as follows:(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (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; and(b)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.

6. The applicant is required to satisfy the 3 conditions set out in Order 42 Rule 6. The power of this court to grant the said order is discretionary. In Butt v Rent Restriction Tribunal [1979], the Court of Appeal stated what ought to be considered in determining whether to grant or refuse a stay of execution pending appeal. The court held that the power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, that if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, 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. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

7. The applicant states that the Surveyor has indicated that he was to visit the parcel of land Bungoma/ Kiminini/ 245 and that she has an arguable appeal. The application was filed on the 29th of June 2023 about 2 months after delivery of the subject ruling. The delay is not inordinate. The applicant filed a Notice of Appeal which is attached to her affidavit in support of the application. There is no draft memorandum of the intended appeal. She only states she has an arguable appeal with nothing to demonstrate the same. She also states she will suffer substantial loss. The court in the case of Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 held as follows;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.”In my view, the applicant has failed to demonstrate the substantial loss she will suffer. In balancing the interests of both parties, I am persuaded that the applicant has failed to demonstrate that she is entitled to the order sought. The application is dismissed. Each party to bear its own costs.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 16TH DAY OF NOVEMBER 2023. R. E. OUGOJUDGEIn the presence of;Miss Komora For the Applicant/ 1st ObjectorMiss Nanzushi for Chrispo Kisanya Kiliru -PresentJudith Musimbi Kiliru -PresentWilkister -C/A