[2022] KEHC 12995 (KLR)

In re Estate of Joash Manyara Maoga (Deceased) (Succession Cause 213 of 2015) [2022] KEHC 12995 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12995 (KLR)

Republic of Kenya

In the High Court at Nyamira

Succession Cause 213 of 2015

JN Kamau, J

September 19, 2022

In re Estate of Joash Manyara Maoga (Deceased)

Between

Rael Nyaboke Manyara

Petitioner

and

David Kombo Manyara

1st Objector

Andrew Barongo Manyara

2nd Objector

(Nyamira HC Succession Cause No 213 of 2013 In the matter of the Estate of Joash Manyara Maoga)

Ruling

Introduction 1. In their Notice of Motion dated January 21, 2021and filed on January 24, 2021, the Appellants herein sought an order for stay of execution or proceedings arising from the Judgment that was delivered on March 4, 2021 in Nyamira HC Succession Cause No 213 of 2013 In the matter of the Estate of Joash Manyara Maoga pending the hearing and determination of the Appeals filed at the Court of Appeal.

2. In his Affidavit that he swore in support of the present application on January 21, 2021on his own behalf and on behalf of the 1st Objector herein, the 2nd Objector herein pointed out that he was an administrator of the Estate of Joash Manyara Maoga (hereinafter referred to as “the deceased”) together with the Petitioner, the 1st Objector herein and his mother, Ebisiba Nyagetari Manyara.

3. He averred that together with other beneficiaries of the deceased’s estate, he and the 1st Objector were dissatisfied with the mode of distribution of the deceased’s estate and the Grant being issued to the Petitioner herein as she had intermeddled with the deceased’s estate by selling the property to a stranger.

4. The Objectors contended that they had already filed Appeals at the Court of Appeal and that the signing of the transmission documents by the Deputy Registrar to enable subdivision and distribution of the estate would render their Appeals nugatory.

5. It was their averment that they had built homes on the said parcels of land which would cause them to suffer irreparable loss and damage. It was their further contention that they filed the present application without undue delay and that they were willing to abide by any order that the court would issue.

6. In response to the said application, the Petitioner herein filed Grounds of Opposition dated and filed on April 1, 2022. She averred that the present application offended the provisions of Order 42 Rule 6 of the Civil Procedure Rules as there was inordinate delay in the filing of the present application and that the 2nd Objector had failed to provide security for the due performance of the decree or to demonstrate that substantial loss would occur if the orders sought were not granted.

7. She added that the present application offended the provisions of Section 83(g) of the Law of Succession Act that requires the administration of a deceased’s estate to be completed within six (6) months of confirmation of grant. She added that the said application was incurably defective, bad in law, lacking in merit, incompetent, vexatious and otherwise an abuse of the court process. It was also her averment that this court lacked the jurisdiction to determine the likelihood of the Appeals being rendered nugatory as a ground for the granting of the stay orders.

8. The Objectors’ Written Submissions were dated and filed on April 1, 2022 while those of the Petitioner were dated May 24, 2022 and filed on May 27, 2022. This Ruling is based on the said Written Submissions which the parties relied upon in their entirety.

Legal Analysis 9. Under Order 42 Rule 6 of the Civil Procedure Rules, 2010 an applicant has to demonstrate the following:-a.That substantial loss may result unless the order is made.b.That the application has been made without unreasonable delay.c.Such security as the court orders for the due performance of the decree has been given by the applicant.

10. The three (3) conditions for the grant of an order for stay of execution must be met simultaneously as they are conjunctive and not disjunctive.

11. Both parties were agreed on the aforesaid conditions. In support of their application that they had met all the grounds for being granted an order for stay of execution, the Objectors relied on the cases of Felix Mochiemo Oindi vs Gitonya Newton Mbogo [2018] eKLR, Anthony Kaburi Krio vs Ragati Tea Factory Company Ltd & 10 Others, Focin Motorcycle Co Ltd vs Ann Wambui Wangui & Another [2018] eKLR andJoseph Kakomo Mbega vs Maingi Charles & Another [ 2018] eKLR.

12. On her part, the Petitioner relied on the cases of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR, Narok Succession Cause No 31 of 2017 In the matter of the Estate of the late Wanga Ole Oiyie (deceased) (eKLR citation not given) Nairobi HC Succession Cause No 1723 of 2015 In the matter of the Estate of Beth Wago Kimani (deceased) (eKLR citation not given) and HC Succession Cause No 889 of 2015 In the matter of the Estate of Beatrice Wairimu Ngara (eKLR citation not given) in arguing that the Objectors had not met the threshold of being granted an order for stay of execution.

13. She also relied on the case of HC Succession Cause No 4 of 2015 In the matter of the Estate of the late Mwaura Makuro (deceased) (eKLR citation not given) where it was held that an administrator to an estate ought to complete the administration of a deceased’s estate within six (6) months of the confirmation of grant.

14. Although this court noted the parties’ respective Written Submissions, it restrained itself from entertaining the merits or otherwise of the present application for the reason that the decision the Objectors intended to appeal against was given by a court of equal and competent jurisdiction as this court and further, because this court was aware of the powers and jurisdiction of the Court of Appeal to grant the orders for stay of execution pending the hearing and determination of an appeal at the said court.

15. Notably, Rule 5(2)(b) of the Court of Appeal Rules, 2010 provides as follows:-“Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.”

16. This court noted that the Objectors had since filed their Notice of Appeal to the Court of Appeal. The said Notices of Appeal were dated March 17, 2021and lodged in this court on March 18, 2021. It was therefore best that the Court of Appeal considers whether it would be in the interests of justice to grant an order for stay of execution pending appeal as it hears and determines the Appeal.

17. Having said so, there was need to grant the Objectors an order for an order for stay of execution to preserve the subject matter pending the filing of a formal application to the Court of Appeal to give it time and opportunity to consider if it will grant an order for stay of execution as it hears the Objectors’ Appeals.

Disposition 18. For the foregoing reasons, the upshot of this court’s decision was that the Objector’s Notice of Motion dated January 24, 2021and filed on January 27, 2021 and is hereby allowed as follows:-a.That stay be and is hereby granted to the Objectors for a period of fourteen (14) days from the date of this Ruling to file a formal application seeking stay of execution or proceedings arising from the Judgment that was delivered on March 4, 2021 in Nyamira HC Succession Cause No 213 of 2013 In the matter of the Estate of Joash Manyara Maoga pending the hearing and determination of the Appeals filed at the Court of Appeal.b.That costs of the application will be in the cause.

19. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF SEPTEMBER, 2022. J. KAMAUJUDGE