[2020] KEHC 432 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ORIGINATING SUMMONS NO. 5 OF 2013

MI Alias GKI................................................................................................APPLICANT

VERSUS

AAG ..........................................................................................................RESPONDENT

RULING

1. Through an Originating Summons dated 11th October 2013, and filed in court on 14th October, 2013, the applicant/respondent sued her former husband the respondent/applicant herein seeking division of various properties which were allegedly acquired jointly during the subsistence of their marriage. Among the properties listed were;

a. Cr. 56950, subdivision 18803 (original No ***** Section 1/MN, Mombasa)

b. L.R Nyeri Municipality/**********

c. Motor vehicle Reg No KBL ****** and KBG *******

d. Plot and house in Nyeri

e. Plot in Ruai- Nairobi

2. In addition, the applicant/respondent prayed for an order to compel the respondent/applicant to render accounts for the rents and profits obtained from L.R Nyeri Municipality/***** and that the said amount be shared equally. Further, that in the event some of the properties may have changed hands, the respondent/applicant be ordered to account for the proceeds.

3. She further prayed for orders to effect transfer of her rightful share into her name and in default the deputy Registrar to execute the same. Lastly, she prayed for a temporary injunction restraining the respondent/applicant from evicting her from the properties and or from transferring, selling or in any other way disposing any of the properties in question.

4. After conducting a full hearing, the court delivered its judgment on 9th October,2020, thereby making the following declaration and orders.

1. That motor vehicle Reg No KBG ****** and the Ruai plot are sole properties of the applicant/respondent.

2. That No CR ***, Subdivision ****** original No. **** of Section IMN, L.R Nyeri Municipality/****** and plot and house in Nyeri, were joint properties to be shared out equally.

5. The court further directed the respondent /applicant to execute transfer documents to give effect to the above orders in default the Deputy Registrar to execute the same. Immediately judgment was delivered, the respondent sought temporary stay of execution. The same was allowed for 14 days.

6. Aggrieved by the said judgment, the respondent / applicant filed a notice of appeal dated 16thOctober,2020. Subsequently, he filed a notice of motion dated 6th November,2020, pursuant to order 42 Rule 6 of the Civil Procedure rules among other provisions seeking orders as follows:

1. That this application be certified urgent and service thereof be dispensed with in the first instance.

2. That pending inter parties hearing of this application, interim orders do issue Ex parte at the first instance in the following terms;

(i) There be unconditional stay of execution of the judgment delivered herein on 9th October,2020 as well as any/all consequential orders/decree and or process

(ii) An order do issue restraining the primary applicant whether by herself, her Agent/Servants/Employees/assigns from transferring, disposing, registering, alienating and/or otherwise howsoever dealing and/or interfering with the primary respondent’s open peaceful, quiet, lawful, continuous, enjoyment and derivative use of.

(a) Title No CR ******, Subdivision ****** (original No ******* section I/MN/Mombasa).

(b) L.R. Nyeri Municipality/*******;

(c) Pot and House in Nyeri, together with any/all developments thereon

(iii) An order do issue restraining the primary applicant, whether by herself, her agents/servants/employee/assigns from engaging in any and all acts and/or omissions amounting to and/or capable of construction to amount to harassment and/or intimation against the primary respondent whether by himself, his agents/ servants /employees/ assigns;

3. That the orders subject of prayer 2 above be served upon;

(i)The court Bailiff, Mombasa, law courts

(ii)The OCS Central police station, Mombasa

(iii)The OCS Central Police Station, Nyeri

For purposes of ensuring compliance, supervising the execution of the order, providing security, and ensure no public disturbance ensues, whilst maintaining law and order throughout and after the execution of the order;

4. That the orders subject of prayers/items No. 2 and 3 above do persist until the hearing and determination of this application, and ultimately, the appeal subject hereof.

5. That the costs of this application be provided for.

7. The application is premised upon grounds stated on the face of it and an affidavit in support sworn on 5th November,2010 by the applicant. Having certified the application urgent on 6th November, 2020 the court allowed the same in terms of prayer 2 pending hearing and determination of the application. The respondent/applicant was directed to serve.

8. It is the respondent’s case that the applicant/respondent did not make any contribution towards the acquisition of the property in question and that she did not demonstrate at all how she contributed and or to what extent was her contribution. He attached a draft memorandum of appeal to buttress the point that he has an arguable appeal with high chances of success.

9. He averred that the property now the subject of division was allegedly acquired by himself and that if the orders sought are not granted, he will suffer substantial loss as execution of transfer of property to the applicant/respondent would have been effected. He went further to state that the application for stay has been filed within reasonable time and that the appeal will be rendered nugatory should the execution take place. He contended that he was ready to meet any condition/s that the court may impose including furnishing of security. In his view, it is in the interest of justice that the substrum of the subject of appeal is preserved pending final determination.

10. In response, the applicant/respondent filed a replying affidavit sworn on 13th March, 2020 opposing the application. She claimed that the properties were acquired during coverture and that she and their children are entitled to occupation and use of Nyeri and Nyali properties which the respondent/applicant has since changed locks thereto after the applicant /respondent moved to Nairobi to join their children in school.

11. She averred that if stay orders are granted, she will be kept away from using some of the matrimonial properties awarded to her by the court yet the respondent/applicant has been enjoying the free use, control, occupation and possession of the properties in question without sharing with her the rent realized therefrom.

12. She further contended that, if the application is granted, the respondent /applicant will have a free hand to dispose the properties while the appeal is pending. She also argued that if stay is granted, she will lose use of her M/V KBG **** which motor vehicle she is currently using in transporting children to school. It was further urged that the respondent should deposit some security in the event that the appeal is dismissed so as to take care of the benefits the respondent/applicant would have enjoyed during the pendency of the appeal.

13. Regarding the question whether the appeal is arguable, she stated that it was not and that there was no proof of any substantial loss or prejudice to be suffered should the order sought not be granted. That the respondent/applicant has failed to meet the threshold for issuance of an injunction or stay of execution orders.

14. During the hearing, Mr Ngonze appearing for the respondent/applicant reiterated the averments contained in the affidavit and supplementary affidavit in support of the application. Counsel submitted that the properties subject of these proceedings are all registered legally in the respondent’s /applicant’s name hence stay of execution will not be prejudicial to the applicant/respondent. He urged that the appeal is merited, arguable and that it will be rendered nugatory should it succeed after execution has taken place.

15. In support of his submission, Mr Ngonze placed reliance in the holding in the case of Butt Vs Rent Restriction Ttibuna(1979) eKLRand Misnak International (UK) Limited Vs 4MB Mining Limited C/o Ministry of Mining, Republic of South Sudan and 3 Others (2008) e KLR to buttress the argument that the power of the court to grant stay is discretionary and that the same should be exercised judiciously without preventing an appeal.

16. On her part, M/s Osino appearing for the applicant/respondent opposed the application relying on the averments contained in the replying affidavit. Counsel expressed herself that under Article 45 of the Constitution, parties to a marriage have equal rights during and after the marriage. She contended that stay orders will have some consequences on the use and occupation of some properties like Motor vehicle KBG ******* which has been and still is in the possession and use of the applicant/ respondent and Nyali property which the family has been occupying as their matrimonial home.

17. Regarding Ruai property, counsel submitted that the property was given to the applicant/respondent by the respondent/applicant hence a stay order cannot apply. Concerning Nyeri property, she contended that rent collected therefrom should be shared equally as well as the property. That should the appeal succeed, the property shall revert to its original ownership hence no substantial loss would have been suffered. Referring onto the authorities referred by Mr Ngonze, learned counsel opined that they are not relevant in matrimonial property cases. As concerns depositing security, Ms Osino submitted that, the same was necessary to secure the outcome of the appeal.

18. In his rejoinder, Mr Ngonze submitted that the stay orders sought are in respect of three properties which do not involve M/V KBG 595A. He conteded that the applicant/respondent has not been barred from accessing the matrimonial home in Mombasa and that she is free to access the same any time she is in Mombasa.

Determination

19. I have considered the application herein, response thereto and oral submissions by both counsel. The applicant is seeking stay of execution order pursuant to Order 42 Rule 6 of the Civil Procedure Rules which provides;

“Rule 6 (1)- No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in for 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 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.”

22. Rule 6 (2) goes further to provide that, for an applicant to obtain an order of stay pursuant to Rule 6 (1) of the CPRS, he or she must prove that;

(a) Substantial loss may result unless the order of stay of execution is made;

(b) That the application seeking stay has been made within reasonable time;

(c) that such security for the due performance of the decree has been provided.

23. It is therefore incumbent upon the applicant to prove the above conditions before the court considers to exercise its wide discretionary powers in his favour. However, a court’s discretion is not to be exercised whimsically but judiciously for the ends of justice to be seen to be done. See Butt Vs Rent Distribution Tribunal (1982) KAR 47.

24. Where the court gave guidelines on exercise of discretion before granting stay orders as follows;

(1) The power to grant or refuse an application for a stay of execution is discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

(2) 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 that appeal court reverse the Judge’s decision.

(3) 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) The court in exercising its discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the applicant had an undisputed right of appeal.

(5) The court in exercising its powers under Oder 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.

25. The above position was echoed in the case of Amal Hauliers Limited vs Abdulnasir Abukar Hassan (2017)Eklr and Mukuma v Abuoga(1988)KLR645. In this case, judgment was delivered on 9th October, 2020 and the application herein filed on 6th November,2020. There is no doubt that the application herein was filed within reasonable time. Is the applicant likely to suffer substantial loss in the event stay of execution order is not granted or issued? What does stay of execution entail in the circumstances of this case. The word “substantial loss” is quite relative and its interpretation is as wide as the circumstances of each case and the context under which it is call upon to apply.

26. In the case of James Wangalwa and another Vs Agnes Naliaka Cheseto (2012) e KLR, the court defined the word substantial loss as follows

“ 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. This is what substantial loss would entail…’’.

27. In the instant case, the court directed that motor vehicle KBG 595A and Ruai Plot were exclusive properties of the applicant/respondent. The rest of the properties were declared as joint matrimonial properties to be shared equally. According to the respondent/applicant, he is seeking to preserve three properties namely; Two Nyeri properties and Nyali property(house). He stated that he is not interested in taking away motor vehicle Regn. No. KBG **** which is being used by the applicant /respondent. He further stated that he has not stopped the applicant/respondent from occupying or accessing the said properties.

28. What prejudice or substantial loss will the respondent/applicant suffer if the orders are not issued. The most direct and immediate consequence in not staying the order directing transfer of ½ share of the properties in question to the applicant/respondent is their transfer. According to the Judgment, his will be done by the Deputy Registrar in the event the respondent/applicant fails to do so.

29. The process of subdivision of property and transfer of the same will involve a lot of money in terms of legal fees, stamp duty and other attendant expenses. Besides, the process is involving both emotionally and materially. In the event the appeal succeeds, the process of reverting back to the original position will be costly and inconveniencing.

30. Cumulatively, when all this process is put together, it will amount to a likelihood of one suffering substantial loss which is not necessarily measured in monetary terms. On that ground alone, I am satisfied that the applicant has met the criteria for stay of execution pending the hearing and determination of the appeal.

31. Is there an arguable appeal? The trial court did consider the issue of contribution of both parties in the acquisition of the properties which is the main ground of the appeal. This court has therefore become functus officio to revisit the merits of the case which in any event is headed for appeal. I do not wish to delve on the merits of the intended appeal as the appellate court will determine the same. However, this is a suitable case where the losing litigant should be given a chance to exhaust his legal process up to the appellate level without undue hindrance.

32. The grant of stay of execution does not prejudice any of the parties as the properties will remain intact save for rent allegedly being collected from some properties and enjoyed by the respondent/applicant to the exclusion of the applicant/respondent. Once the properties are preserved, parties shall fast track the hearing of the appeal.

33. Regarding the issue of depositing security for due performance of the decree, the respondent/applicant has no objection. Although not specifically stated as to the extent of what security and for what purpose, the court has the discretion to so order where it deems it fit. See Arun C Sharma Vs Ashana Raikundalia t/a Raikundalia and Co. Advocates and 2 others ( 2014) e KLR where the court elaborated on the purpose for security as follows;

“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…’’

34. Although not admitted yet not denied, there is some rent being collected by the respondent/applicant from one of the Nyeri properties. The actual amount per month was not stated or disclosed. The court cannot therefore guess on the amount so as to secure the same by directing for deposit of security that will properly and sufficiently take care of the applicant/respondent’s interest.

35. However, considering the special circumstances of these proceedings being matrimonial property, nobody should feel burdened by being ordered to deposit a huge amount of money as security. Taking into account that the respondent /applicant will be enjoying some unspecified rent from some of the disputed properties, it will be safe to direct that the respondent /applicant deposit some money to take care of the applicant’/respondent’s share of rent, interest and costs of the appeal should the appeal not succeed .I will therefore direct that the respondent /applicant does deposit Ksh 500,000 in court within 60 days from the date of this ruling.

36. To guard against any possible transfer or distribution of the property pending the filing of the appeal, an injunction shall issue against all affected properties restraining any alienation, transfer or sale. Having held as above, it is my finding that the applicant has met the threshold for grant of stay of execution orders. Accordingly, the application is allowed in terms of prayer 2 (two) (i) and (ii) a,b and c pending hearing and determination of the appeal on condition that the applicant does deposit Ksh 500,000 as security within the specified period.

37. For avoidance, the applicant / respondent shall be at liberty to access peacefully the properties in question when need arises. She shall also continue using M/V reg No KBG **** without any interference from the respondent/ applicant. Regarding costs, this is a family issue. Each party shall bear own costs.

Dated, signed and delivered virtually this 9th day of Dec. 2020

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HON. JUSTICE J.N. ONYIEGO

JUDGE