[2022] KEHC 1419 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO. 138 OF 2018

PERSIAH MUTHONI MASINDE (Suing as Administratix and on behalf of the

ESTATE OFTHE LATE JOHN GITAU GICHURU)..........................PLAINTIFF

VERSUS

HAMILTON HARRISON & MATHEWS ADVOCATES...........1ST DEFENDANT

JOAN NJOKI NDUNGI.................................................................2ND DEFENDANT

RULING

1. The plaintiff/applicant in this instance has brought the Noticeof Motion dated 19th July 2021 supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for conservatory orders to be issued conserving the status quo or the rights of parties prior to the ruling dated 28th February 2020 as well as orders for stay of proceedings to execute or enforce the order awarding costs of the suit pending the hearing and determination of the applicant’s Intended Appeal.

2. In retort to the said Motion, the 1st and 2nd defendants put inGrounds of Opposition dated 3rd September, 2021 and 10th September 2022 to resist the motion.

3. When this application came up for interparties hearing, thelearned counsels recorded a consent order to have it disposed of by written submissions.

4. I have considered the grounds stated on the face of the motionsand the facts deponed in the affidavit filed in support and the grounds of opposition. I have also considered the rival written submissions plus the authorities cited together with the oral highlights of learned counsels.

5. It is the submissions of the applicants that the present caseConcerns the preservation of assets of the estate of the late Samuel Gichuru. It is also stated that a portion of those assets rightly belong to the plaintiff/applicant as his grandchild or the children of his late son John Gitau Gichuru and is held by the 2nd defendant as the administrator for their benefit. The plaintiff further submit that he died after confirmation of the Grant of letters of administration but prior to distribution hence he has been denied by the 2nd defendant his right to those assets.

6. The plaintiff submits that he accessed the court to protect the assets in question and avoid wasting or mismanagement, and that the purpose of this litigation is to seek legal remedy for the losses and wastage.

7. It is also argued that, as a result of the court order for costs, the plaintiff is now obligated to pay the defendants' costs, despite the fact that the 2nd defendant is illegally holding the plaintiff's assets and that both defendants have jointly and severally wasted the plaintiff's assets and subjected them to massive losses.

8. It is further argued that forcing the plaintiff to pay the said legal costs while the defendants hold, enjoy, mismanage, and deny them their assets is a gross injustice, and that the second defendant has purposefully refused to obey the law and distribute the said estate of their grandfather by taking advantage of their own father's death.

9. The 1st defendant stated the plaintiffs are seeking a stay of execution of the decree/order issued on February 28, 2020, and the draft memorandum of appeal is in regard to the judgement and order issued on May 21, 2021. They went on to say that it is common knowledge that a court cannot grant a stay of a decree that is not the subject of an appeal.

10. On this the 1st defendant relied on the Court of Appeal case ofKenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others (2016)eKLR

“It is trite law that stay of execution pending appeal can only be granted against the order being appealed against. Put differently, an order for stay of execution pending appeal cannot be granted if the intended appeal is not against the order sought to be stayed”

11. The 1st defendant submits that the plaintiff's application does not meet the legal requirements for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules because they have not shown how they will suffer substantial loss, the applicants have not and will not provide sufficient security for due performance, and the costs awarded in the ruling dated 28th February 2020 have not been taxed, making sufficient security for the order's performance impossible to determine.

12. On whether an order for stay can issue against negative orders,The 2nd defendant submitted that the orders in the judgement dated 21st May 2021, are negative in character because their intent was to simply reject the plaintiff's plea for review of the orders in the ruling dated 28th February 2020. The 2nd defendant further claimed that this court had issued no instructions that could be carried out by the defendants in general or the 2nd defendant in particular.

13. On this the 2nd defendant relied on the case of National Cereals& Produce Board v Errad Suppliers & General Contractors Limited, Nairobi Civil Application No. 48 of 2012where the court held that no stay of order is capable of being issued by a court of law against a negative order such as a dismissal or striking out order. The same was reiterated in the case of Western College of Arts and Applied Science v Oranga & Others (1976-80) 1 KLRwhere the court of Appeal for East Africa stated in respect of stay of execution as follows:

“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.”

14. The principles guiding the grant of an application for stay ofexecution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Ruleswhich provides as follows:

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 applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) 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.

15. On the issue of substantial loss, which is the cornerstone in anapplication for stay. The plaintiff avers that, in addition to disobeying the law by refusing to distribute the estate's part of the estate to the plaintiff, the 2nd defendant is also mismanaging and squandering the estate.

16. It is the submission of the defendants that the plaintiff has not demonstrated the substantial loss and has not provided sufficient security for due performance of the order.

17. Having considered the rival submissions, it is clear to me thatthis court issued a negative order which is not capable of execution hence there is nothing to stay save for recovery of costs which is yet to be assessed vide taxation proceedings.The plaintiff has specifically sought to stay the order issued by this court, dismissing the plaintiff/applicant’s suit.

18. In the end, I find no merit in the plaintiff/applicant’sapplication. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS

10TH DAY OF MARCH, 2022

………….…………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff

……………………………. for the 1st Defendant

................................... for the 2nd Defendant