[2022] KEHC 16141 (KLR)

In re Estate of Njagi Gakindi (Deceased) (Succession Cause 144 of 2004) [2022] KEHC 16141 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16141 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 144 of 2004

LM Njuguna, J

December 7, 2022

Between

Peter Mburu Njuguna

1st Applicant

Evans Nguu Gakindi

2nd Applicant

and

Dewill Njeru Simon

1st Respondent

Peter Githaka Njagi

2nd Respondent

and

Kellen Wanja Mbaka

Interested Party

Ruling

1. The applicants herein moved this court vide a notice of motion dated July 4, 2022 seeking for orders that:i.Spent.ii.There be an order for stay of execution of the orders given in the ruling delivered on May 11, 2022 pending the hearing and determination of this application.iii.There be an order for stay of execution of the orders given in the ruling delivered on May 11, 2022 pending the hearing and determination of the intended appeal to the Court of Appeal.iv.Costs.

2. The notice of motion is supported by the affidavit sworn by one Peter Githaka Njagi and wherein he deposed that he is aggrieved by the order of this court authorizing the registrar to sign all the necessary documents to ensure that the beneficiaries being the 1st and 2nd applicants and the interested party inherits in equal shares from the balance of the original Land Parcel No. Kagaari/ Kigaa/3144. That he is aggrieved and dissatisfied with the said orders and thus wishes to prefer an appeal and that the notice of appeal has already been served upon the applicants/respondents herein. It was his case that he has requested for certified copies of proceedings and that the application herein has been filed without any delay. That although there was no formula given in the certificate of confirmation of grant as to how the balance of the Land Parcel No Kagaari/Kigaa/3144 was to be shared and in what ratio, this court made an order that the same be shared in equal shares. He therefore urged this court to allow this application in the interest of justice.

3. The application is opposed by way of a replying affidavit sworn by the 1st applicant/respondent on October 7, 2022 wherein it was deposed that the said application is frivolous, lacks merit and an abuse of the court process. From the amended certificate of confirmation of grant issued to the applicants/administrators on June 16, 2015, the 2nd applicant and himself were to get the balance of the original Land Parcel No Kagaari/Kigaa/3144 together with the interested party. It was his contention that seven years have elapsed since the amended confirmation of grant was issued and no reason has been given by the applicants/administrators for not implementing the grant. He deposed that for this court to grant the orders sought herein, the applicants must demonstrate that they will suffer substantial loss something that the applicants herein have not submitted on. That as per the amended certificate of confirmation of grant, the balance of the original land Parcel No Kagaari/Kigaa/3144 was to be shared equally among the three beneficiaries and none was allocated a bigger share than the others.

4. He contended that no prejudice will be occasioned to the administrators by the implementation of the amended certificate of confirmation of grant as it was consented to, by the administrators/applicants and all other beneficiaries of the estate herein. That litigation must come to an end and the amended certificate of confirmation of grant in the estate herein ought to be implemented so that all beneficiaries can get their respective shares. It was deposed that the applicants have not attached a memorandum of appeal to show that the intended appeal has chances of success. That given that the applicants have not offered any security to warrant issuance of stay of execution, the application herein should be dismissed with costs to him.

5. The parties took directions for disposal of the application by way of written submissions. In compliance thereto, each party filed its submissions in support of their respective positions.

6. I have considered the said application, the response thereto and the rival written submissions.

7. The applicants submitted that on May 11, 2022, this court delivered a ruling whereby it directed the Deputy Registrar of the court to sign all the necessary documents to ensure that the beneficiaries, being the two applicants and the interested party inherit in equal shares the balance of the original Land Parcel No Kagaari/Kigaa/ 3144. That the applicants herein are aggrieved by the said ruling and hence the application herein; reliance was placed on order 42 rule 6 of the Civil Procedure Rules and the case of Antoine Ndiaye v African Virtual University (2015) eKLR. That in the certificate of confirmation of the grant, no ratio was provided as to how the remainder of the land parcel Kagaari/Kigaa/3144 was to be shared, the court however made an order that it should be shared equally between the beneficiaries. That all through, the respondent has been in occupation of 0. 05 ha out of the land and hence no prejudice will be suffered by the 1st applicant/respondent if the status is maintained. That on the other hand, the family of the deceased will suffer substantially if the applicant/respondent receives more than his entitlement as this will translate to the dependants of the deceased getting less than what they are supposed to get.

8. Further, he submitted that the ruling was delivered on May 11, 2022 and having been aggrieved by the said ruling, they have filed a notice of appeal which was served upon the applicants/ respondent’s advocate on June 3, 2022. As such, it was the applicants’ contention that no delay had been occasioned in filing the application herein given that the same was filed on July 4, 2022. On security for costs, the applicants relied on the case of Focin Motorcycle Co Ltd v Ann Wambui & Another [2018] eKLR, and averred that they are ready to abide by the reasonable terms that this court may issue. In the end, it was prayed that this court allows the application herein.

9. The respondents on the other hand submitted that the applicants/administrators and the interested party are all beneficiaries of the estate of Njagi Gakindi, the deceased herein. That as per the amended certificate of confirmation of grant dated 16. 06. 2015, the respondents/applicants and the interested party were to get the balance of the original Land Parcel Number Kagaari/Kigaa/3144. That seven years have since elapsed and no reason has been given by the applicants/administrators why the same has not been implemented. He submitted that delay defeats equity and he who seeks equity must do so with clean hands; that the applicants/administrators’ role was just to implement the amended certificate of confirmation of grant which they intentionally refused and/or neglected to do thus necessitating the respondents to seek the intervention of the Honourable Court. That the orders that the applicants/administrators are seeking to appeal against, were basically to ensure the implementation of the amended certificate of confirmation of grant issued on June 16, 2015. It was their case that the applicants/administrators are not denying the facts and contents of the said grant but only refuses to implement the same in respect of the beneficiaries that is; the 1st and 2nd respondents only; that it is unfair to deny the applicants/respondents their rights to get a share out of the estate herein. He relied on the cases of Antoine Ndiaye v African Virtual University (2015) eKLR and Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co Advocates (2014) eKLR. It was their case that given that the applicants have failed to demonstrate that they deserve the orders sought herein, the application herein should be dismissed with costs.

10. The power of a court to grant stay of execution is discretionary and as such, this discretionary power must not be exercised capriciously or whimsically. [See Butt v Rent Restriction Tribunal [1979]]. This is so for the reason that the purpose of stay of execution is to preserve the subject matter in dispute while balancing the interests of the parties and considering the circumstances of the case. [See the Court of Appeal in RWW v EKW (2019) eKLR and Court of Appeal of Uganda in Mugenyi & Co Advocates v National Insurance Corporation [Civil Appeal No 13 of 1984]].

11. Therefore, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in order 42 rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.[ See Antoine Ndiaye v African Virtual University [2015] eKLR].

12. However, it is trite that such orders can only be made where there is pending appeal. The operating words therefore are “pending appeal.” order 42 rule 6(4) provides that: -“For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given”.

13. I have perused the court record and indeed there is a notice of appeal dated May 24, 2022 and a request for certified copies of proceedings dated May 25, 2020. But as correctly observed by the applicant/respondent, a memorandum of appeal has not been attached but under order 42 rule 6(2) once a notice of appeal has been filed, an appeal shall have been deemed to have been filed.

14. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under order 42 rule 6 of the CPR. This is so because execution is a lawful process. 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.”

15. The applicants deposed that no ratio was provided as to how the remainder of the Land Parcel No. Kagaari/Kigaa/3144 was to be shared, that the court however made an order that it should be shared equally between the beneficiaries. That all through, the applicant/respondent has been in occupation of 0. 05 ha out of the land and hence no prejudice will be suffered by the 1st applicant/ respondent if the status quo is maintained. It was his contention that on the other hand the family of the deceased is bound to suffer substantially if the applicant/respondent receives more than their entitlement. That the 1st applicant/respondent continues occupying the portion 0. 5 ha out of the original Land Parcel No. Kagaari/Kigaa/3144 and which portion he has developed as parties await the Court of Appeal determination over the dispute. That the 2nd applicant/ respondent also maintains the portion he has been occupying all along.

16. As to the condition that the applicant must provide security, the applicant did not offer any security and there is nothing deposed to that effect. However, it is trite that the issue of security is discretionary and it is upon the court to determine. In Butt v Rent Restriction Tribunal[1982] KLR 417, the Court of Appeal held as thus: -“……..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.”

17. In RWW v EKW [2019] eKLR, the court considered the purpose of a stay of execution order pending appeal, in the following words:“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.Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the Appellant with those of the respondent.”

18. I am guided by the above authorities. However, in the instant application, the applicants in my view did not prove any substantial loss that they stand to suffer; I say so for the reason that the applicants/administrators duty was just to execute the amended certificate of confirmation of grant issued on June 16, 2015. Of importance to note is the fact that all beneficiaries of the estate herein were provided for and the applicants/respondents were ordered to share the balance of original Land Parcel of Kaagari/ Kigaa/3144; further, no appeal has ever been preferred on the said mode of distribution.

19. Evidently, the three (3) prerequisite conditions set out in order 42 rule 6 of the Civil Procedure Rules, 2010 cannot be severed. The key word is “and” which connotes that all the three (3) conditions must be met simultaneously. The applicant must meet all the tenets – requirements of- order 42 rule 6 of the Civil Procedure Rules. Failure to satisfy any one of the tenets stipulated in that rule is fatal to the application. As such, there would be no need for the court to proceed and determine the other condition or provision of unreasonable delay. [See Equity Bank Limited v Taiga Adams Company Limited [2006] eKLR].

20. It is trite law that a successful litigant should not be denied his lawfully acquired judgment unless there are compelling reasons to do so. The applicants herein have not convinced the court that they are deserving of the orders sought.

21. In the premises, I find that the application herein has no merit and it is hereby dismissed with costs.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………………..………..for the Applicants…………………………………………….for the Respondents………………………………………..for the Interested Party