[2022] KEHC 14876 (KLR)

In re Estate Simon Maina Karia (Deceased) (Succession Cause E021 of 2021) [2022] KEHC 14876 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14876 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause E021 of 2021

FN Muchemi, J

November 3, 2022

IN THE MATTER OF THE ESTATE OF SIMON MAINA KARIA (DECEASED)

Between

Cyrus Kiama Maina

Applicant

and

Teresia Njoki

Respondent

Ruling

Brief Facts 1. The application for determination dated March 31, 2022 brought under Rules 63 and 73 of the Probate and Administration Rules seeks for orders for stay of execution of the judgment delivered on July 7, 2021 and ruling delivered on March 15, 2022 vide Karatina PMC Succession Cause No 225 of 2017 and further proceedings in execution of the judgment pending the hearing and determination of the appeal.

2. The respondent opposed the application in his filed Replying Affidavit sworn on May 23, 2022 and filed June 2, 2022.

The Applicant’s Case 3. The applicant states that the deceased is his father with the respondent being a sister to the deceased. The respondent in the trial court claimed that she was entitled to half share of land parcel Ruguru/Karuthi/565 based on an alleged trust created at the time of demarcation of the land in Central Kenya in 1958. The applicant contends trust adverts on title and thus cannot be adjudicated upon as a transmission issue. Being aggrieved by the judgment of the trial court on distribution, the applicant states that he has filed an appeal and encloses the memorandum of appeal. The applicant contends that the respondent applied to the trial court to sanction the Executive Officer of the magistrates court to execute the transmission documents which application was allowed on 15/3/2022. He further deposes that no evidence of service of the transmission document was adduced and as such forms RL17 and RL 19 are currently obsolete and inapplicable.

4. The applicant is thus apprehensive that the land stands to be sub divided and transmitted. He further contends that his appeal shall be rendered nugatory and their current occupations with tremendous physical and permanent developments shall be disturbed and disrupted. He further contends that his appeal has overwhelming chances of success and thus ought to be given an opportunity to be heard.

5. The applicant further states that the respondent has her own portion of land that he has been occupying and that the applicant and other beneficiaries have no intentions of disturbing her occupation. Moreover, the applicant avers that the respondent should be barred by a court order from disturbing the status quo to allow the appeal to be heard.

The Respondent’s Case 6. The respondent states that the application is a waste of judicial time and an abuse of the court process and that her advocate or herself has ever been served with the original copy of the memorandum of appeal. The respondent contends that there is a stipulated time frame for serving documents and the applicant has not served her with his appeal up to date.

7. The respondent states that the appeal raises no meritable issues since the applicant failed to file submissions in the trial court to canvass what he is saying in the appeal. Moreover, the respondent states that she filed submissions on the issue of trust and put in authorities to support her case but the applicant did not oppose her submissions on the issue of trust.

8. The respondent contends that in the pleadings, the applicant had conceded and agreed to her getting ½ acre out of land parcel Ruguru/Karuthi/565. She thus states that she should be allowed to develop and put up a permanent house on the part she occupies pending the determination of the instant appeal in respect of the 3. 15 acres she was claiming and was granted by the trial court.

9. The respondent avers that the appeal is intended to cause delay and deny her the fruits of the lower court judgment as she cannot do any meaningful developments in the suit land. As such, she prays that the application be dismissed.

10. Parties hereby disposed of the application by way of written submissions.

The Applicant’s Submissions 11. The applicant relies on the cases of Hassan Guyo Wakalo vs Straman EA Ltd (2013) and RWW vs EKW(2019) eKLR 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. The applicant submits that the trial court allowed the respondent’s application to have the Executive Officer execute the transmission documents and thus the suit land is set to be subdivided and transmitted. The applicant is apprehensive that if the suit land is subdivided, his appeal shall be rendered nugatory and their current occupations with tremendous physical and permanent developments are bound to be disturbed and disrupted. On the other hand, the applicant submits that the respondent does not stand to suffer any prejudice if stay of execution is allowed since she has her own portion on the suit land which he has no intentions of disturbing her occupation.

12. The applicant submits that the intended appeal has overwhelming chances of success as he has raised an appeal on the jurisdiction of the Succession Court which has no jurisdiction to adjudicate on matters of trust. The applicant relies on the case of HC Succession Cause No 864 of 1996(2015) eKLR and submits that a trust being a matter related to title to land can only be tried by the Environment and Land Court.

13. The applicant further submits that he stands to suffer substantial loss as he occupies the suit land and he has developed the said land tremendously which stand to be disrupted. The applicant is further apprehensive that if evicted from the suit land he risks being kept in the cold with the destruction of his physical and permanent developments. He further submits that the respondent does not stand to suffer any prejudice if stay of execution is allowed as she has her own occupied portion on the suit land and he has no intention of disturbing her occupation.

14. The applicant submits that judgment was delivered on 7/7/2021 and he filed his memorandum of appeal on 28/7/2021. He further states that he filed the instant application on 31/3/2022, a period of eight and a half (8 ½) months and submits that the period does not amount to inordinate delay. To support his averments the applicant relies on the cases of Mwangi S Kimenyi vs Attorney General & Another (2014) eKLR andPeter Nakupang Lowar vs Natu Lowar (2021) eKLR. As such, the applicant urges the court to allow his application and grant the orders of stay of execution pending appeal.

The Respondent’s Submissions 15. The respondent submits that the instant application is a mere delay and ought to have been filed when the appeal was lodged on 28/7/2021. The respondent states that for over a year she has not enjoyed the fruits of her judgment. She relies on the case of Nyeri High Court Succession Cause No 1034 of 2010 submitting that the applicant ought to make a deposit as security within 30 days if the court grants the orders for stay of execution.

16. The respondent submits that the appeal has no merit and will probably not succeed. Further, the respondent states that the issues raised on appeal are new as the applicant did not raise these issues in the trial court. As such, the respondent states that the instant application is an abuse of the court process and ought to be dismissed with costs.

17. The main issue for determination is whether the applicant has met the prerequisite for grant of stay of execution pending appeal;

Whether the Applicant has Met the Prerequisite for Grant of Stay of Execution Pending Appeal. 18. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-1. “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 orders 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 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb.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.

21. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1. Substantial loss may result to him/her unless the order is made;2. That the application has been made without unreasonable delay; and3. 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.

22. These principles were enunciated in Butt vs Rent Restriction Tribunal[1979] 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.

Substantial Loss 23. Under this head, an applicant must clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of Shell Ltd vs Kibiru and Another[1986] KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows:-“The appeal is to be taken against a judgment in which it was held that the present respondents were entitled to claim damages….It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the high Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts….”The learned judge continued to observe that:-“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial Loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money."

24. Earlier on, Hancox JA in his ruling observed that:-“It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would…render the appeal nugatory.This is shown by the following passage of Cotton LJ in Wilson vs Church (No 2) (1879) 12 ChD 454 at page 458 where he said:-“I wish to state my opinion that when a party is appealing, exercising his undoubtedly right of appeal, this court ought to see the appeal, if successful, is not rendered nugatory. “As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

25. The applicant has indicated that he stands to suffer substantial loss as the permanent developments on the suit land. Such developments may be disrupted in the event the suit land is subdivided and that in the event he is evicted, he risks being disadvantaged. Upon perusal of the record it is noted that both the applicant, his family and the respondent occupy and utilize the suit land and this has been the position for years. If the orders for stay are denied, the applicant is likely to loose on his investments on the land and is likely to be evicted from his known home of many years. For these reasons, I am of the considered view that the applicant has established that he will suffer substantial loss.

Has the Application has Been Made Without Unreasonable Delay. 26. Judgment was delivered on July 7, 2021 and the applicant has brought the present application on April 4, 2022. This is around 8 ½ months and further the applicant has not explained the reason for his delay in filing the present application. The applicant has only submitted that a duration of 8 ½ months does not amount to unreasonable delay without giving any reasons as to the cause of the delay. I therefore find that the applicant has not satisfactorily explained the delay in filing his application and thus it is my considered view that the application has been brought with unreasonable delay.

Security of Costs. 27. The applicant ought to satisfy the condition of security. In the persuasive case of Gianfranco Manenthi & Another vs Africa merchant Assurance Co Ltd[2019] eKLR the court observed:-“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”

28. Similarly in Arun C. Sharma vs Ashana Raikundalia t/a Rairundalia & Co Advocates & 2 Others [2014] eKLR the court stated:-“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

29. From the above persuasive decisions, it is clear that the issue of security is discretionary and it is upon the court to determine whether security ought to be provided and the extent of such security.

30. The right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Mohammed Salim t/a Choice Butchery vs Nasserpuria Memon Jamat(2013) eKLR where the Court upheld the decision of Portreitz Maternity vs James Karanga Kabia Civil Appeal No 63 of 1991 and stated that:“That right of appeal must be balanced against an equally weighty rigid right that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”

31. The issue in the balancing of the parties rights is whether there is just cause for depriving the respondent her right of enjoying her judgment. The respondent states that the applicant has not satisfied the conditions to warrant him stay of execution. The applicant on the other hand states that the appeal will be rendered nugatory if the respondent distributes the estate before the appeal is determined. I am of the view that the respondent will not be prejudiced by the act of granting the orders sought.

32. I have perused the grounds of appeal and noted that the applicant intends to appeal on the jurisdiction of the probate court. Without going to the merits of the appeal, I opine that the intended appeal raises arguable points of law and that the appeal may be rendered nugatory if the suit land is subdivided. There is need therefore to preserve the subject matter of the appeal to prevent the appeal being rendered nugatory.

33. Consequently, I find that this application has merit and it is hereby allowed on the following terms:-a.That stay pending appeal is hereby granted on condition that the applicant deposits Kenya shillings Two Hundred Thousands (200,000/=) within thirty (30) days.b.That in default of the said amount, the orders for stay shall stand vacated.c.That costs of this application shall abide in the appeal.

21. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 3RD DAY OF NOVEMBER, 2022. F. MUCHEMIJUDGERuling delivered through video link this 3rdday of November, 2022