[2022] KEHC 16157 (KLR)

In re Estate of Michael Munyeni Macharia (Deceased) (Succession Cause 739B of 2013) [2022] KEHC 16157 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16157 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 739B of 2013

FN Muchemi, J

December 8, 2022

IN THE MATTER OF THE ESTATE OF MICHAEL MUNYENI MACHARIA (DECEASED)

Between

Francis Kihori Munyeni

Applicant

and

Nahashon Macharia

1st Respondent

George Samba Ogutu

2nd Respondent

Ruling

1. The application for determination dated June 25, 2021 seeks for orders for stay of execution of the ruling delivered by this court on June 10, 2021 pending the hearing and determination of the appeal.

2. The respondents have filed a replying affidavit dated August 4, 2021 in opposition to the application.

The Applicant’s Case 3. The applicant deposes the ruling delivered on June 10, 2021 was adverse to the estate of the deceased and as such he lodged an appeal before the Court of Appeal. The applicant is apprehensive that the estate shall suffer loss should the orders issued be executed and the transfer documents signed by the Deputy Registrar without payment being made. Furthermore, the same will amount to aiding a defaulting party to make do with acts of default which are prejudicial on the part of the estate. Moreover, the applicant contends that the appeal shall be rendered nugatory if execution issues despite there being a proper appeal on record which has chances of success.

The Respondents’ Case 4. The respondents state that they were listed as beneficiaries of the deceased under the confirmed grant which was issued on July 10, 2014. The respondents further state that the court can intervene and compel the enforcement of a grant when an administrator fails to enforce a confirmed grant. The applicant has taken no action since July 10, 2014 when the grant was confirmed to execute the said grant in favour of the respondents. The respondents state that following the ruling of June 10, 2021, they deposited the balances of the purchase prices of land parcels LR No 10846/32 and LR No 10846/33 to which the court acknowledged receipt of the said funds and issued official receipts. The respondents aver that the amount of Kshs 5,605,000/- is being held for the benefit of the applicant and one Nicholas Macharia Munyeni who are the administrators of the estate as per the sale agreements of the parties for the two parcels of land. As such, the said amount ought not to be channelled to the estate of the deceased but the applicant and his co-administrator are delaying the completion of the said transaction.

5. The respondents contend that the applicant has not provided or offered any security to warrant the grant of an order of stay despite the applicant and his co-administrator failing to enforce the confirmed grant. Furthermore, the applicant has failed to demonstrate how the estate will suffer substantial loss that cannot be compensated by way of costs despite the respondents having deposited the amount of Kshs 5,605,000/- with the court. The respondents further aver that the applicant has not disclosed his grounds of appeal to warrant the court to exercise its discretion and grant the orders of stay.

6. The respondents reiterate that the confirmed grant was issued on July 10, 2014 and seven (7) years later are still awaiting for the transfer of the parcels of land to themselves, which transfer has been tactfully frustrated by the applicant and his co-administrators. The respondents contend that they continue to suffer prejudice at the hands of the applicant despite their willingness and readiness to comply with their end of the agreement. Moreover, the respondents argue that they have deposited the full purchase price and yet the applicant has failed to deliver on the completion documents. As such, the applicant has not demonstrated the capability of repaying the monies towards the purchase price if the appeal is not successful. Moreover, the respondents state that they are in possession of the subject properties and have extensively developed them and substantively raising their monetary values. As such, the respondents contend that there isn’t any sufficient material placed before the court to warrant the grant of the orders for stay of execution.

7. Parties agreed to have the application determined by way of written submissions.

The Applicant’s Submissions 8. The applicant relies on the cases of Century Oil Trading Company Ltd v Kenya Shell Limited Nairobi (Milimani) HCMCA No 1561 of 2007 and Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC No 795 of 1997 and submits that the court ought to balance the interests of both the successful litigant so as not to unnecessarily bar her from enjoying the fruits of the judgment and that of the appellant whose appeal may succeed and be rendered nugatory if stay of execution is not granted.

9. The applicant submits that the court ought to be guided by the overriding objectives of Section 1A and 1B of the Civil Procedure Act and weigh the likely consequences of granting or denying stay and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. To support his contentions, the applicant relies on the cases of Victory Construction v BM (A minor suing through next friend PMM) [2019] eKLR; Visharm Ravji Halal v Thorton & Turpin Civil Appeal No Nai 15 of 1990 (1990) KLR 365 and Suleiman v Amboseli Resort Limited[2004] 2 KLR 589.

The Respondents’ Submissions 10. The respondents rely on the case of HGE v SM [2020] eKLR and submit that the applicant has failed to demonstrate how the estate shall suffer substantial loss if the transfer documents are signed in their favour. The respondents argue that following the court ruling on June 10, 2021, they paid to the court Kshs 5,605,000/- as balance of the purchase price and thus what is pending is the execution of the transfer documents in their favour. Therefore since the sums owing have been deposited in court, the interests of the estate are fully protected. Moreover, the respondents submit that the applicant cannot seek stay on what has already been complied with and thus the application has been overtaken by events. The respondents further argue that they have been in occupation of the subject properties and have extensively developed the same and they only seek to have the title documents for their properties. They contend that they continue to suffer losses as they cannot enjoy their parcels fully despite having paid for them and being in possession.

11. The respondents rely on the cases of Felix Mochiemo Oindi v Gutonya Newton Mbogo [2018] eKLR; HGE v SM [2020] eKLR and Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 others [2014] eKLR and submit that in the event the court do allow stay of execution and that the applicant ought to provide security to ensure that any costs that may be awarded resulting from the appeal are secured and the respondents will be able to recover the costs having been forced to litigate on the matter. As such, the respondents urge the court not to grant the orders for stay of execution as the applicant has not offered any security.

12. Although the application was filed expeditiously, the respondents argue that the applicant has not met the other conditions as set out in order 42 rule 6 of the Civil Procedure Rules and thus he should not be granted the orders of stay of execution.

Whether the applicant has met the prerequisite for grant of stay of execution pending appeal. 13. Section 47 of the Law of Succession Act gives the court jurisdiction to entertain any application such as the present one which seeks to preserve the status quo pending the appeal. Order 42 rule 6(2) of the Civil Procedure Rules lays down the conditions which a party must establish in order for this court to order stay of execution. These conditions are:-a.Substantial loss may result to him/her unless the order is made;b.That the application has been made without unreasonable delay; andc.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

14. These principles were enunciated in Butt v Rent Restriction Tribunal [1979] eKLR the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1. 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.2. Secondly, 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 the appeal court reverse the judge’s discretion.3. 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.4. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 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 of costs as ordered will cause the order for stay of execution to lapse.

15. On the issue of substantial loss, the case of Re Estate of Wanga Ole Oiyie [2022] eKLR Gikonyo, J relied on the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR where the court held:-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.

16. The applicant has stated that the estate of the deceased stands to suffer substantial loss should the orders granted in the ruling be executed before the appeal is heard and determined. It is my considered view that the applicant has not demonstrated what loss the estate shall suffer in the event the orders of stay are not granted. Execution of the grant is a legal process that ought to take place after the grant has been confirmed. It is not sufficient for the applicant to claim that substantial loss will ensue for the mere fact that the execution process may proceed. Additionally, although the applicant contends that the appeal shall be rendered nugatory if the orders sought are not granted, he has not demonstrated how that will happen in the event that the orders are not granted. It is worthy noting that the respondents have been and are still in occupation of the portions bought from the administrators. The balance of the purchase price has already been deposited in court.

17. The instant application was filed on June 25, 2021 and the ruling was delivered on June 10, 2021. It is therefore my considered view that the application was filed timeously.

18. On the issue of security, it is trite law that security is discretionary and it is upon the court to determine the same. Notably, the applicant has not offered any security to warrant the application for stay. The respondents contend that since they have complied with the orders of the court by depositing the balance of the purchase price in the amount of Kshs 5,605,000/- and are yet to receive the completion documents, the court ought to order the applicant to furnish security as the respondents cannot access the sum of Kshs 5,605,000/- and they shall have to wait to have their right to the property realized.

19. In carrying out the balancing act between the rights of the applicants and the respondents, it is my considered view that the scale tilts in favour of the respondents as they have already complied with the court orders by depositing the sum of Kshs 5,605,000/- in court and therefore the estate of the deceased is secured. Despite paying the said amount, the respondents have not been given the executed transmission to facilitate ownership of their land. The respondents bought the parcels of the land they are occupying from the estate of the deceased and were given possession of them which status still prevails. It has not been denied that the respondents have made extensive developments and are in possession of the portions of the land.

20. In some earlier application dated January 8, 2020 and February 10, 2020 filed by the parties herein, the applicant claimed that the respondents had failed to complete payment of the consideration. He had sought to have another purchaser one Isaac Jannah Nderitu substituted in place of the respondents in the grant so as to take the land parcels the respondents had bought from the estate. The application was dismissed and the court ordered that the respondents do deposit the balance of the purchase price in court which orders were complied with. If the applicant has been aggrieved by the respondent’s failure to pay the balance of the purchase price, which is now secured in court as a deposit, I am not convinced that he has an arguable appeal against the orders made by this court on 10th day of June 2021. However, he is entitled to be heard on appeal despite his failure to meet the conditions for grant of stay. In my considered view, it will not prejudice the applicant if the application for stay is not granted. However, it is the respondents who are likely to be prejudiced by the long wait on the ownership of their land as opposed to the applicant whose purchase price was fully paid.

21. Consequently, I find that the applicant has not satisfactorily met the conditions required for the orders of stay of execution pending appeal to be granted.

22. The application dated June 25, 2021 lacks merit and it is hereby dismissed with costs to the respondents.

23. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 8THDAY OF DECEMBER, 2022. F MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 8THDAY OF DECEMBER, 2022