[2022] KEHC 3283 (KLR)

In re Estate of Loice Wangari Kamu(Deceased) (Succession Cause 327 of 2012) [2022] KEHC 3283 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3283 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 327 of 2012

JM Ngugi, J

July 14, 2022

Between

Mary Wanjiku Mwangi

Applicant

and

Nyambura Wangai Wajihi

Respondent

Ruling

1. The Deceased in this matter died on January 31, 1994. The Deceased had three children – two sons and one daughter, the respondent. Both sons pre-deceased her. The applicant is the wife of one of the sons.

2. The only listed asset of the estate of the Deceased is the land known as Bahati/Kabatini Block 1/1358 (hereinafter “the Suit Property”). During the Succession proceedings, the applicant maintained that the Suit Property was not the property of the Deceased and therefore available for distribution. The applicant’s position was that the Suit Property belonged to her husband, the Deceased’s son who had pre-deceased her. Therespondent, on the other hand, insisted that the Suit Property belonged to the Deceased and that it was, therefore, available for distribution.

3. After taking viva voce evidence, the Learned Judge (Ng’etich J.) delivered a judgment dated October 28, 2021 in which she found for therespondent. She ruled that the Suit Property belonged to the Deceased and ordered that it be shared equally between the Respondent and the applicant.

4. The applicant was dissatisfied with the judgment and has filed a Notice of Appeal at the Court of Appeal. He has also now brought the present Application dated February 22, 2022 seeking a stay of execution of that Judgment. The application seeks the following prayers:1. Spent2. Spent3. That pending the hearing and determination of the intended appeal, this Honourable Court be pleased to stay execution of the Judgment delivered on October 28, 2021, the Decree therefrom and all other consequential orders arising the said Judgment (sic)4. That the costs of this application be awarded to the Applicant.

5. The application is supported by the grounds on the face of the application and the affidavit of Mary Wanjiku Mwangi (the applicant) dated February 21, 2022. The Applicant is aggrieved by the Judgment declaring that the suit property is part of the Deceased’s estate. She maintains her protestations that that property exclusively belonged to her deceased husband, John Mwangi, and does not form part of the Deceased’s estate.

6. Theapplicant swears that she has already instructed her advocates to appeal the said Judgment and they have filed a Notice of Appeal and requested for a copy of the proceedings. She contends that it is in the interest of justice that this court stays execution of the said Judgment considering that the respondent may embark on subdivision and annexation of the suit property.

7. The applicant further contends that she has an arguable appeal which will be rendered nugatory if the orders she seeks are not granted and pledges to abide by any reasonable conditions set by this Court as a prerequisite to grant the orders sought.

8. The respondent opposed the Application vide her affidavit dated March 8, 2022. She contends that the Application is misconceived, incompetent and does not advance cogent reasons for grant of the orders sought. To the respondent, there is no evidence of any intention to dispose of her share of the suit property. She denies that the Judgment deprived the applicant of any proprietorship rights over the suit property, since it ordered that the same be shared equally.

9. The respondent depones that the applicant is currently in sole and active occupation of the suit property and is merely seeking to delay the respondent’s entitlement to the property. She contends that granting the orders sought would be denying her, a successful litigant the fruits of her judgment without any sufficient material for the court to exercise such discretion.

10. The respondent denies that the attachment of a Notice of Appeal is proof of an existing appeal with high chances of success and thus believes that the applicant has not satisfied the conditions for a grant of stay of execution. She contends that what is sought to be stayed is reversible as the applicant can be reinstated back into the land and states that any subdivision does not render the appeal nugatory.

11. The respondent further contends that the applicant has not demonstrated how she will suffer substantial loss and has thus failed to satisfy the requirements for a grant of stay of execution pending appeal. She says that in such an application, the Court has to balance the interests of the parties and should not capriciously deny the successful litigant from enjoying the fruits of the judgment. Therespondent thus prays that the application be dismissed.

12. In her rejoinder dated April 21, 2022, the applicant depones that she already filed her Memorandum of Appeal, served a Record of Appeal upon the Respondent and that she intends to pursue the appeal to its finality.

13. The Application was argued by way of written submissions. The applicant’s submissions are dated April 21, 2022. The Applicant relies on the provisions of Order 42 Rule 6 (1) and the conditions therein, as set out in the case of Runda Water Limited &another v Timothy Njoki Nicklin &another [2017] eKLR.

14. On the issue of substantial loss, the applicant contends that the Judgment of this court rendered the suit property as property of the Deceased’s estate. She invites the court to take Judicial Notice that appeals at the Court of Appeal take 3 to 5 years to be heard. She argues that this is enough time for the Respondent to actuate her plan to subdivide the land, which she says forms the substratum of the appeal and may be sold to third parties if subdivided.

15. The applicant further invites the court to consider the tedious process it would take to revert the title back to her if the appeal succeeds as well as the subsequent expenses. She thus contends that she would suffer substantial loss if the land is subdivided when the appeal would have maintained her account of events.

16. On the issue of security, the applicant submits that she has pledged to abide by the conditions of the court while on the issue of unreasonable delay, the applicant submits that the Judgment was delivered on October 2021 and the Application filed on February 22, 2022. She contends that the application was thus filed on time, given the time taken to take instructions, advocate client correspondence and the long December holidays. The applicant, in conclusion cites the case of Nduhiu Gitahi &another v Anna Wambui Warugongo [1988] 2KAR.

17. Therespondent’s submissions are dated 09/5/2022. The respondent submits that the three conditions that the applicant must fulfil under Order 42 Rule 6 of theCivil Procedure Rules is that the court has been approached without unreasonable delay, substantial loss may result unless the orders are granted and the willingness to furnish security for the due performance of the decree appealed from. The respondent relies on the case of Chris Munga N. Bichage v Richard Nyagaka Tongi & 2others.

18. The respondent argues that the applicant has not demonstrated evidence of irreparable substantial loss and prejudice she stands to suffer. She reiterates that the Judgment does not divest any proprietorship interest from the applicant, who has been in occupation of the suit property, depriving therespondent of her entitlement. She argues that thiscourt cannot at this point discern whether the Appeal has a high probability of success as this can only come to light at the hearing of the appeal.

19. The respondent thus relies on the cases of Northwood Service Ltd.vMac & More Solutions Ltd[2015] eKLR and James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR and submits that the applicant has not placed material before the court to demonstrate that execution will create a state of affairs that will irreparably affect or negate the essential core of the applicant as a successful party in the appeal.

20. It is also therespondent’s submission that the applicant was indolent in filing the application, the same having been brought until four months after the delivery of judgment. The respondent argues that theapplicant should not be allowed to benefit from her delay. She citesNeeta Gohil v Fidelity Commercial Bank Limited[2019] eKLR where a delay of five months was held to be inordinate. She further cites the case ofJaber Mohsen Ali & another v Priscillah Boit & another[2014] eKLR.

21. The respondent also submits that the applicant has not provided security, which she contends must be provided. She relies on the cases of Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others[2014 eKLR, Focin Motorcycle Co. Limited v Ann Wambui Wangui & another[2018] eKLR and Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 others[2015] eKLR and argues that it is not enough for the applicant to say that she will abide by the terms imposed by the court without furnishing or offering security. The respondent suggests that instead, the Applicant be ordered to deposit the original title deed to the suit property pending the hearing and determination of the intended appeal.

22. Therespondent urges the court to uphold the decision in Mohammed Salim T/A Choice Butchery v Nasserpuria Memon Jamat [2013] eKLR that the right of appeal must be balanced against the right of the plaintiff to enjoy the fruits of its judgment.

23. The sole issue for determination is whether theapplicant has met the criterion for grant of stay of execution pending appeal at the Court of Appeal.

24. An Application for stay of execution in the High Court is governed, primarily, by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:6. (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 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; 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.

25. Our decisional law has clarified this rule. Among the legion of authoritative cases establishing it, the judges of the Court of Appeal were both concise and emphatic in Rhoda Mukuma v John Abuoga:It was laid down in M M Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (following Wilson v Church (No 2)(1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

26. Both the applicant and the respondent are agreed on how the courts have interpreted this provision. The courts have required that an applicant demonstrates four things in order to be entitled to a grant of an order for stay of judgment pending appeal:a.The appeal filed must be arguable;b.The applicant is likely to suffer substantial loss unless the order is made. Differently put, it must demonstrate that the appeal will be rendered nugatory if the stay is not granted;c.The application was made without unreasonable delay; andd.The applicant has given or is willing to give such security as the Court may order for the due performance of the decree which may ultimately be binding on it.

27. In the present case, it is difficult to argue that the appeal is not arguable: it is a first appeal on a findings of fact to an appellate court which has the mandate to review findings of facts of this court de novo. It follows that the appeal is definitionally arguable. I should point out that to earn a stay of execution, one is not required to persuade the court that the filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the appellant has plausible and conceivably persuasive grounds of either facts or law to overturn or vary the original verdict.

28. The gravamen of the application turns on whether it can be said that the appeal will be rendered nugatory if the stay is not granted. The Applicant herein says that she will suffer substantial loss if the orders sought are not granted because the respondent is likely to start the subdivision process and disinherit her of the other half of the suit property which she strongly holds is her entitlement. The respondent says that the judgment does not divest of any proprietorship interest from the Applicant who has been in occupation of the Property throughout the pendency of the suit. The Respondent fears that the applicant intends to “continuously deprive the Respondent” of her rightful share in her inheritance.

29. The applicant is correct that without a stay order, the respondent would be entitled to cause the division of the Suit Property into two; and to proceed to transmit half of it to herself. Additionally, since it is admitted that the applicant is in occupation of the whole parcel, execution would mean that she exits half of it. It is even entirely possible that without a stay the Respondent could, and would be entitled to dispose of her half share.

30. It, therefore, only seems fair that the status quo be maintained until the Applicant exercises her right of Appeal. I am, therefore, persuaded that the respondent would suffer substantial loss unless the stay order is granted.

31. On the third consideration, the Judgment in this matter was delivered on October 28, 2021. The Applicant timeously filed her Notice of Appeal on November 9, 2021. The applicant’s explanation for filing the Application when she did is that the time taken was to allow taking of instructions, advocate client correspondence and the long December holidays. The filing of the Notice of Appeal was clear indication that the Applicant was at the time desirous of filing an appeal and instructed her advocates. While I agree that the Application could have been filed sooner, I am not prepared to hold that the delay of four months is inordinate in the circumstances of this case.

32. As for security, the subject matter of the litigation is land. Half of it has been bequeathed to the applicant. In my view, that supplies the necessary security for due satisfaction of the decree.

33. The only concern worth paying attention to, in my view, is whether the stay will provide a perverse incentive for the applicant not to expedite her appeal. Armed with a stay of execution order, the applicant will have no incentive to expedite the appeal. Yet, the stay of execution is a substantial fetter on the inheritance rights of the respondent as things stand (since the court has declared that she is entitled to half of the Suit Property). This is why it is always preferable that parties going up on appeal should seek stay of execution in the appellate court to which they are appealing so that that appellate court can properly calibrate the conditions with the density of its docket and Active Case Management practices in mind.

34. In the circumstances of this case, it is imperative to balance the prospect that the appeal may be rendered nugatory in the absence of a stay (especially since the applicant has already demonstrated that there is at least an arguable ground of appeal) against the principle that the successful party in the proceeding should not be kept away from the fruits of her judgment for an indefinite period. The best way to achieve the balance is to grant a time-bound stay of execution. Such a time-bound stay of execution both protects the applicant but also incentivizes her to expedite the hearing of the appeal. In the event the appeal cannot be heard within the time envisaged in the stay, the applicant will, then, have to approach the Court of Appeal for an appropriate extension of time. The Court of Appeal would, then, be in a position to decide on such an application with the density of its docket in mind.

35. The upshot is the following:i.Pending the hearing and determination of the appeal whose Notice of Appeal was lodged in court herein, there will be a stay of execution of the Judgment dated October 28, 2021 and all consequential orders therefrom for a period of one calendar year (365 days) from today.ii.If the applicant shall require an extension of the stay of execution granted herein beyond the one-year period granted, the Applicant shall move the Court of Appeal for extension of this order or prosecute its appeal at the Court of Appeal within that time. For the avoidance of doubt, the extension of this stay of execution, if needed, shall be sought at the Court of Appeal and not at this Court.iii.The costs of this Application shall abide with the outcome of the Appeal.

36. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 14THDAY OF JULY, 2022. .................JOEL NGUGIJUDGE