[2022] KEHC 13474 (KLR)

NM v IMN (Matrimonial Cause 5 of 2016) [2022] KEHC 13474 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13474 (KLR)

Republic of Kenya

In the High Court at Nakuru

Matrimonial Cause 5 of 2016

JM Ngugi, J

October 6, 2022

Between

NM

Applicant

and

IMN

Respondent

Ruling

1. After dissolution of the parties’ marriage in Nakuru Divorce Cause No 9 of 2009, the applicant filed the suit herein seeking distribution of the parties’ matrimonial properties. In a judgment dated March 16, 2022, this court (Ngetich J) made three categories of the properties: The first category consisted of five properties which were listed as ‘unavailable for distribution’. The second category consisted of one property which was ordered to go to the parties’ children, while the third category consisted of six properties which were listed as ‘available for distribution’ and which were ordered to be distributed at the ratio of 60: 40 in favour of the applicant, the former husband. The judgment further ordered each party to bear its own costs of the suit.

2. Thereafter, the respondent/applicant filed the application now before me dated March 29, 2022 seeking the following orders:1. Spent2. Spent

3. That the honourable court be pleased to order for stay of execution of the judgment/ decree herein delivered and dated the March 16, 2022 and all the consequential orders thereto pending the hearing and determination of the intended appeal to the Court of Appeal.4. That such other orders be made as is just and expedient in the interest of justice.5. That costs of this application be costs in the intended appeal.

3. The application is supported by the grounds on the face of it and the affidavit of IMN dated March 29, 2022. The respondent/applicant says that she is aggrieved by the judgment of the court and has instructed her advocates to appeal to the Court of Appeal. She depones that her advocates filed a notice of appeal on March 21, 2022 and requested for certified copies of the proceedings on the same date.

4. The respondent/applicant contends that her intended appeal raises serious, weighty, and triable issues, has high chances of success and ought to be heard on merit. She is apprehensive of the risk of being dispossessed of the subject properties in line with the judgment and the applicant disposing them thus putting them beyond the jurisdiction of this court.

5. The respondent/applicant believes that her appeal has high chances of success and that it will be rendered nugatory if stay of execution is not granted. She also believes that the applicant may proceed to execute the judgment thus subjecting her to substantial loss and that she is likely to be disenfranchised and left destitute if the properties are sold or divided in execution of the judgment.

6. She contends that this court should facilitate the right of appeal and that there is no prejudice that will be occasioned to the applicant (if the orders are granted) since he has been living comfortably without the subject properties.

7. The applicant/respondent (NM) opposed the application through his affidavit dated April 11, 2022. He denies that there is a high risk of the properties being disposed. He swears that he is an honourable citizen who cannot sell properties subject to the court process and that he would have sold the properties given that there was no injunction barring him from selling them.

8. The applicant depones that the respondent has been collecting rent from all the rental premises and that upon judgment, he made a proposal to the respondent suggesting the distribution of the properties. He says that he is not opposed to the filing of an appeal by the respondent but contends that he is entitled to 60% of any rental income from parcel xx/xx (plot 50), xxxx/xxx (plot 49), xxx/xxx/xxx, Plot No xx and Gilgil market stall No xx. The applicant therefore proposes that a reputable agent be appointed to collect rent pending the appeal and that such proceeds be shared at the 60:40 ratio as per the judgment of the court.

9. To the applicant/respondent, the application has been brought in bad faith with the intention of prolonging litigation, and to ensure that the respondent/applicant continues to benefit from the rental incomes solely while he -the applicant/respondent – continues to languish in economic inability. He maintains that the court should allow him to begin enjoying 60% of the rents collected from which he has not benefited since the parties’ separation in 2006.

10. The application was argued by way of written submissions. The respondent/applicant’s submissions are dated May 10, 2022. The respondent/applicant submits that an applicant in an application for stay of execution is to satisfy the conditions set out under order 42 rule 6 of the Civil Procedure Rules as applied in the case of Antoine Ndiaye v African Virtual University [2015] eKLR. These are that substantial loss may result if the order is not made, the application has been made without unreasonable delay and such security as the court orders for the due performance of such decree

11. As to substantial loss, the respondent/applicant relies on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR. She submits that substantial loss is the cornerstone of a grant of an application for stay. She contends that in the instant case, the effectual implementation of the decree contemplates the sale of all the assets of the parties. She says that she has since retired from her teaching job and draws her income from the subject properties and the decree forces her to sell the said properties. This, she submits is likely to cause her substantial loss and render her appeal nugatory.

12. On the second condition, the respondent cites the case of M’ndaka Mbiuki v James Mbaaba Mugwira [2010] eKLR. She submits that the application has been made without unreasonable delay, the judgment having been delivered on March 16, 2022 and the application filed on March 29, 2022.

13. On the issue of security, the respondent relies on the purpose of an order for stay of execution pending appeal given in In Re Estate of Beth Wago Kimani (Deceased) [2020] eKLR and Butt v Rent Restriction Tribunal [1979] eKLR. She further relies on JKK v MKT [2021] eKLR and JMK v KK& LNK [2019] eKLR and reiterates that her appeal has high chances of success, and it is imperative that the subject matter of the judgment be preserved. The respondent/applicant argues that the preservation of the subject matter of the suit also provides security that may be required for due performance of the decree, so that the requirement for security does not arise given the nature of this matter.

14. The respondent/applicant submits that the discretion of the court in granting an application for stay of execution should be exercised in a way that it does not prevent an appeal. She contends that she has met the principles for granting an order for stay of execution and urges the court to allow the application.

15. The applicant/respondent’s submissions are dated May 19, 2022. He relies on the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR and contends that the respondent/applicant has not shown what loss she is likely to suffer if he gets 60% of the rental income from the income generating properties while she remains with 40% thereof.

16. The applicant/respondent submits that the respondent/applicant has not presented any documentary evidence to persuade the court to grant a stay of execution or to show the loss she is likely to suffer. He contends that the respondent/applicant has been enjoying the use of rental income from family properties and allowing her to continue doing so is to destroy the substratum of the litigation, tantamount to derogating his rights.

17. The applicant/respondent contends that after the delivery of judgment, the parties should fight from a level playing ground. He relies on the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR and reiterates that the applicant has not demonstrated what loss she is likely to suffer.

18. The applicant/respondent argues that there is no likelihood that the appeal will succeed. He urges the court to rely on the guidance for discerning substantial loss given in Machira T/A Machira & Co Advocates v East African Standard [2002] KLR 63. He submits that he should not be allowed to be a bystander in a financial income venture he greatly assisted in creating.

19. On the issue of security, the applicant contends that the respondent has not undertaken to show the court how she is to furnish security. He refers the court to the purpose of security given inArun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014 eKLR. The applicant/respondent argues that the two requirements must be established by the respondent/applicant sequentially and not in isolation. He contends that the respondent/applicant has not met the conditions set out under order 42 rule 6.

20. In conclusion, the applicant/respondent submits that the respondent/applicant has not come to the court with clean hands, having admitted to benefiting from the rental income to the exclusion of the applicant since 2015. He relies on the cases of Esther Nugari Gachomo v Equity Bank Limited [2019] eKLR and John Nduva Wambua & Another v Kioko Makaya [2019] eKLRand prays that the application be dismissed.

21. From the foregoing, the sole issue for determination is whether the respondent has met the threshold for grant of a stay of execution pending appeal.

22. The conditions for stay of execution pending appeal as set out under order 42 rule 6 and developed by case law are:i.The appeal must be arguable.ii.The applicant must demonstrate that she is likely to suffer substantial loss unless the order is made, or the appeal will be rendered nugatory if the stay is not granted;iii.The application was made without unreasonable delayiv.In appropriate cases, the applicant must demonstrate that she has given or is willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on him.

23. As the Court of Appeal articulated in Mutahi v Kithangari & 4 others (Civil Application E085 of 2021) [2022] KECA 564 (KLR), an applicant need not demonstrate a multiplicity of arguable points, as one arguable point would suffice. Neither is the applicant required to show that the appeal will necessarily succeed.

24. In the instant case, the respondent not only claims that the judgment failed to adjudicate the dispute between the parties with finality, but she also intends to challenge the mode of distribution given in that judgment. These are in my view, bona fide issues for determination by the Court on Appeal. The intended appeal therefore satisfies the test of arguability.

25. The application was also timeously filed, having been filed on March 29, 2022, about twelve days after the delivery of judgment on March 16, 2022.

26. On the issue of substantial loss, the respondent’s apprehension is that the subject properties may be subdivided in execution of the decree. Both parties acknowledge that the respondent has been in possession of the properties, from which she admits she gets her livelihood. The execution of the decree is likely to unsettle her possession of the properties while the appeal is still pending thereby rendering the appeal nugatory. Her apprehension is, in my view, only reasonable if the properties are disposed of in the ratio decreed by the trial court. The applicant/respondent, however, suggests that rather than selling the properties, there be appointed a reputable agent to collect the rents which would, then, be shared in the ratio adjudged by the court.

27. In my view, the solution suggested by the applicant/respondent repudiates the argument that the intended appeal would be rendered nugatory: it most eminently would not. Instead, the proposed solution to share the rental income in the ratio decreed by the court without disposing of the properties will balance the interests of both parties as they await the outcome of the appeal. It will, also, preserve the subject matter of the appeal. Finally, the proposed solution will obviate the need for security for costs.

28. I therefore make the following orders:I.Stay of execution of the judgment/decree dated March 16, 2022 be and is hereby issued pending the hearing and determination of the intended appeal to the Court of Appeal only to the extent that none of the properties identified in the judgment/decree will be disposed of during the pendency of the appeal.II.Counsel for both parties to jointly identify a property agent who will be responsible for collecting the rental income from Gilgil xxx/xxx/xxx, Gilgil xxx/xxx (plot 50), Gilgil xxx/xxx (plot 49), Gilgil Milimani Plot No xx and Gilgil Market Stall No xx.III.All the rental income collected from the properties in II above to be shared on a ratio of 60:40 with the applicant/respondent (NM) getting the higher figure (after deducting costs and expenses including the fees for the property agent).IV.Each party to bear its own costs of this application.Orders Accordingly.

DATED AT KAKAMEGA THIS 5TH DAY OF OCTOBER, 2022………………………JOEL NGUGIJUDGEDELIVERED AT NAKURU THIS 6TH DAY OF OCTOBER, 2022……………………………HILLARY CHEMITEIJUDGE