[2022] KEHC 3393 (KLR)

Josiah v Nyaga (Civil Appeal 34 of 2021) [2022] KEHC 3393 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3393 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 34 of 2021

LM Njuguna, J

May 11, 2022

Between

Hebert Mbogo Josiah

Applicant

and

John Njue Nyaga

Respondent

Ruling

1. Before me is a notice of motion dated 29. 09. 2021 and filed under certificate of urgency and wherein the applicant seeks for orders that:i.Spentii.Spent.iii.The Honourable Court be pleased to grant an order for stay of execution of the ruling delivered on 07. 09. 2021 in Embu CM Succession Cause No. 296 of 2018 and all consequential orders pending the hearing and determination of the applicant’s appeal.

2. The applicant herein submitted that he was a protestor in the lower court, in which his protest was dismissed and the court ordered the grant to be confirmed as per the summons dated 17. 09. 2019. That the applicant is a member of the 2nd house of the deceased while the respondent is a member of the 1st house which previously had benefitted from the estate of the deceased. It was submitted that the applicant and members of the 2nd house will seriously be disadvantaged if the grant is confirmed as ordered by the Honourable Court as the members of the 1st house will take land belonging to the 2nd house whereas the deceased herein had settled them on their own land parcel No. Ngandori/Kirigi/501. It was further submitted that the only land that has been left belonging to the deceased and which the appellant and the members of the 2nd house have lived and developed is land parcel No. Ngandori/Kiriari/1416. Reliance was made on Order 42 Rule 6 of the Civil Procedure Rules and in the end, the applicant prayed that the application be allowed.

3. The respondent filed a response to the application and wherein he submitted that the applicant and himself are beneficiaries of the estate of the deceased. That the applicant had file a protest against the confirmation of grant which was dismissed by the trial court on 07. 09. 2021 and the court held that the estate be shared amongst all the children of the deceased. It was submitted that the intention of the applicant clearly is to deny the children of the first wife a share in the estate of their deceased father. That the applicant ought to have provided this court with a draft memorandum of appeal to demonstrate to the court that the grounds of appeal are arguable. Reliance was made on the case of Halai and Another v Thomas & Turoin(1963) Ltd [1990]; further, it was submitted that the applicant must satisfy the basic requirement for grant of stay orders pending appeal considering that there is an order in place requiring the beneficiaries to share the estate equally. In the end, the respondents pray that the application be dismissed with costs.

4. I have considered the application and the rival submissions by the parties and it is my view that the issue for determination is whether the application has merits.

5. The applicant has sought before this court a stay of execution of the orders issued on 07. 09. 2021. The orders sought are provided for under the Law of Succession Act and/or Probate and Administration Rules. It is trite that the provisions of the Civil Procedure Act and Civil Procedure Rulesdo not apply as the Law of Succession Act is self-encompassing law. However, under Rule 63 of the Probate and Administration Rules [See Josephine Wambui Wanyoike v Margaret Wanjiru Kamau &another[2013] eKLR] the following Orders; V, X, X1, XV, XV111, XXV, XL1V, and XL1X apply to succession matters. These orders deal with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attendance of witnesses, affidavits, review and computation of time apply.

6. As such, it is clear that stay of execution is not one of the reliefs which can be granted by this court.

7. However, under Section 47 of the Law of Succession Act, this court has jurisdiction to entertain any application and determine any dispute under this Act and further, to pronounce such decrees and make orders as may be expedient. Under Rule 49 of the Probate and Administration Rules, a person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in the Rules ought to file a summons supported if necessary by affidavit. In this case, the court was moved by way of a notice of motion instead but under Article 159 of the Constitution, this court shall endeavor to consider substantive justice as opposed to procedure. Rule 73 on the other hand, preserves the inherent jurisdiction of this court while dealing with matters succession. The wording of that Rule is pari materia with Section 3A of the Civil Procedure Act on inherent powers of this court.

8. It is thus my view that notwithstanding the fact that Order 42 of the Civil Procedure is not among those orders imported into the law of succession Act by Rule 63(1) of the Probate and Administration Rules, this court has jurisdiction to grant orders of stay of execution while invoking its inherent powers under Rule 73 and make orders in the interest of justice.

9. Order 42 deals with stay of execution pending appeal. The power to grant orders of stay of execution pending appeal is discretionary in nature and it should be exercised judiciously. Further, in the exercise of the same, discretion the court is supposed to do so in a manner that would not render the appeal nugatory. [See Bhutt v Rent Restriction Tribunal(1982) KLR 417. ]

10. Order 42 rule 6(2) Civil Procedure Rules lays down conditions which a party must satisfy before a court can grant an order of stay of execution as follows;i.that substantial loss may result to the applicant unless the order is madeii.that the application has been made without unreasonable delay; andiii.that 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.

11. The said conditions were also set out by the Court of Appeal in Halai andanother v Thornton & Turpin (1963) Ltd [1990] KLR as follows;“In Rasiklal Somabhai Patel v Parklands Properties Ltd the Court said that before it could decide the application (for stay of execution) it must have regard to the requirements of Order XLI Rule 4(2) of the Civil Procedure Rules under which the Applicant had to satisfy the Court of two matters application is granted, which prima facie means that if the appeal succeeds, the Respondent would not be in a position to make full restitution. Secondly, the Applicant had to give such security as the Court may order. Those are the requirements under Order XLI Rule 4(2) of the Civil Procedure Rules but that order mainly governs applications before the superior Court and not those to this Court, although in sub-rule (1) of the same Rule reference is made to the Court to which the appeal is preferred. It is, however, worth noting that as to the court to which the appeal is preferred it is at liberty to consider the application made to it and make such order thereon as may, to it, seem just……..”

12. As to whether the applicant will suffer substantial loss if the stay is not granted, the applicant deponed that the second house stands to suffer irreparably given that the first house had been given property Ngandori/Kirigi/501. The respondent on the other hand avers that the applicant’s intention is to disinherit the first house. On her part, the Respondent deposed that granting the orders of stay will only delay the distribution of the estate which the court had ordered to be shared equally between the two families.[See James Wangalwa &another v Agnes Naliaka Cheseto[2012] eKLR;-“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.

13. It is my view that any dealing in the estate in execution of the order issued by the court will lead to the applicant losing substantially in the event that the appeal is successful. Further that, if the said estate is not preserved, then the substratum of the intended appeal might be exposed thus rendering the intended appeal nugatory in that the estate shall have been distributed, to the detriment of the applicant. See Hassan Guyo Wakalo v Straman EA Ltd(2013) eKLR where the court held the view that: –“In addition the applicant must prove that if the orders sought are not granted and his appeal eventually succeeds, then the same shall have been rendered nugatory. These twin principles go hand in hand and failure to prove one dislodges the other”.

14. As to the delay in bringing the application before this court, I note that the impugned ruling was delivered on 07. 09. 2021 and the application herein made on 29. 09. 2021. In my view, the filing of the application herein was not inordinate. As such, the requirement as to timeliness in bringing the application is satisfied.

15. As to the security for costs, the applicant deponed that he is ready to abide by any condition that the court may impose in terms of security. I find that the condition has been satisfied by adopting the view of the court in the case of Butt v Rent Restriction Tribunal(supra) held that;-“….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.”

16. In view of the foregoing, it is my considered view that the application has merits and I hereby allow the same and grant an order for stay of execution for a period of 90 days within which the appeal should be prosecuted failing which the stay orders shall lapse.

17. It is so ordered.

Delivered, dated and signed at Embu this11th day of May, 2022. L. NJUGUNAJUDGE……………………………………….for the Appellant……………………………………..for the Respondent