[2022] KEHC 10899 (KLR)

Ramadhan v Kibiringo & another (Family Appeal E002 of 2022) [2022] KEHC 10899 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10899 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal E002 of 2022

JO Nyarangi, J

June 3, 2022

Between

Hassan Ramadhan

Appellant

and

Khamis Soud Kibiringo

1st Respondent

Mohamed Ramadhan Hassan

2nd Respondent

(Being an appeal from the judgement and orders of honourable Habib Salim Vumbi (Principal Kadhi) delivered on 20th January 2022 in succession cause petition no.1 of 2019, Mombasa)

Ruling

1. Before this honourable court is a notice of motion application dated 26th January,2022, seeking the following orders;a.Spentb.Spentc.That a stay of execution be and is hereby issued staying execution of the judgement and orders of the Kadhi’s Court (Hon.Habib Salim Vumbi) issued on January 20, 2022 pending the hearing and final determination of the appeal filed herein.d.That the costs be in the course.

2. The application is premised on the grounds thereof and the supporting affidavit of Hassan Ramadhan the applicant herein sworn on January 26, 2022. The applicant stated that he was dissatisfied with the judgement of the Kadhi delivered on 20th Janury,2022 and was appealing the same in its entirety as the same did not capture the evidence before the court; did not resonate with the law and the constitution hence unfair and unjust.

3. He further stated that he together with his sister Asha Ramadhan and other siblings Rukia Abdalla and Kassim Abdalla Hassan were appointed the administrators of the estate of Ramadhan Hassan Kasarasara, Suleiman Hassan, Abdalla Hassan and Fatma Hassan. That the bone of contention at the Kadhi’s Court was who the legal heirs to the estate were and what constituted the estate.

4. The applicant stated that it is him and his sister Asha Abdalla who developed, maintained and renovated Plot Number 1748 section VI/MN after the collapse of the old mud house. That the same was acquired by the government through Kenya National Highways Authority (KENHA) and a compensation paid.

5. It was their case before the Kadhi’s Court that there should be a distinction between the land which was part of the estate and the house which was constructed by them which meant the compensation should not have been lumped into being part of the estate. That the compensation amount was deposited into a joint account in the names of the administrators at KCB Bank limited where the money is still held to date.

6. The applicant stated that with the Kadhi’s judgement he was afraid that the respondents would write to the bank in line with the orders of the court demanding for their share of the money hence the need for stay to preserve the money pending the outcome of the appeal.

7. He further stated that the appeal was meritorious with high chances of success and that the same should be determined on merit which could only be done if there was stay and status quo maintained otherwise the appeal would be rendered nugatory and just but an academic exercise.

8. The applicant averred that the application herein was filed without unreasonable delay and the same was not prejudicial to any party as it would assist in a just and fair determination of issues in contention. That they would comply with the orders that this honourable court may set as precondition to the stay orders. That they were determined to have the appeal heard and determined within the shortest period.

9. In response, the respondents filed a replying affidavit on February 17, 2022 stating that the applicant’s application lacked merit and was meant to delay the final actual distribution of the estate funds herein, unfairly. They further stated that the rightful heirs /beneficiaries and their rightful shares had already been identified by the Hon.Kadhi in his judgement delivered on January 20, 2022.

10. That majority of the beneficiaries including themselves were in urgent need of getting their respective succession shares to pay school fees for their children while others were sickly and aged and in urgent need of their monetary shares to care for their medical needs. That some beneficiaries had died before enjoying their succession shares and some more might follow suit.

11. They further stated that the matter had been pending before the Kadhi’s court for a long time and allowing this application would add more suffering to the beneficiaries. That there must be an end to litigation. They deposed that the manager KCB Bank, Kilindini Branch, Mombasa be directed to immediately deposit the estate funds in court for distribution thereof by all willing beneficiaries, and those for the appeal could then go ahead and await the outcome of the appeal.

12. They further stated that the applicant had not followed the right procedure as he ought to have lodged the application herein before the trial court from which the judgement is being appealed. They further described the applicant’s application herein as frivolous and with no merit. They urged the court to dismiss the application with costs and in the alternative order the applicant to deposit reasonable security for due performance first.

13. The application was canvassed by way of oral submissions.

14. The applicant through his counsel Mr.Adala reiterated the position in his supporting affidavit and submitted that the appeal had high chances of success and unless allowed, the same will be rendered nugatory. Counsel submitted that the honourable Kadhi did not have jurisdiction to deal with the matter which was an issue of appeal. That the issue was whether the estate of the deceased comprised the compensation money issued by the national land commission and whether the Kadhi had jurisdiction to deal with the same.

15. The 1st respondent in rejoinder submitted that this was an old case and he did not see the reason to stay the distribution process and urged the court to dismiss the application. That the order of the court should be upheld. He further submitted that the entire family was against the applicant and they were tired of coming to court.

16. The 2nd respondent basically associated himself with the sentiments expressed by the 1st respondent and urged that the appeal be dismissed. Mr.Adala counsel for the applicant in his rejoinder to the 1st and 2nd respondents’ submissions submitted that the orders should be stayed for the interest of justice.

17. Have considered the application, the response therein and the rival submissions of both parties. Issues that emerge for determination are;a.Whether an order for stay of execution should be grantedb.Whether the appeal has high chances of success.

18. The law governing stay of execution is provided for under order 42 rule 6 of the Civil procedure rules 2010 which provides;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 order 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 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.3. …4. …5. …6. …

19. While deliberating on the issue of stay of execution, in the case of HGE v SM[2020] eKLR the court addressed the conditions to be satisfied under order 42 rule 6 as follows;“An applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in order 42 rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. See Antoine Ndiaye v African Virtual University [2015] eKLR’’.

20. The most critical condition to be satisfied in an application for stay is proof that substantial loss may result if the same is not granted. The court in the case of James Wangalwa &anothervAgnes Naliaka Cheseto [2012] eKLR discussed the issue of substantial loss and stated thus;“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, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under order 42 of theCPRand rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:“…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.”

21. In this case, the applicant argued that with the Kadhi’s judgement he was afraid that the respondents would write to the bank in line with the orders asking for their share of the money. That if stay of execution is not granted, the respondents armed with the Kadhi’s judgement would with no doubt seek to have the said sums disbursed thus rendering the appeal nugatory.

22. The monies in KCB Bank which is in dispute is quite substantial and if distributed, there is a likelihood that some of the beneficiaries may not be able to refund. None of them has stated that in the event the appeal succeeds they will be able to reimburse. In the circumstances therefore, if the subject of contention is not preserved the applicant will suffer substantial loss and the appeal rendered nugatory.

23. The second condition is on the application being made without unreasonable delay. The application herein was filed on January 27, 2022 7 days after the delivery of the Kadhi’s judgement which was delivered on January 20, 2022. Accordingly, application was made without unreasonable delay.

24. The third condition is whether security has been given by the applicant. The court in the case of Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] eKLR in discussing the issue of security stated;“Thirdly, 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 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 degree in order to enjoy the fruits of his judgment in case the appeal fails.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 judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal.”

25. In this case the respondents urged the court to order the applicant to deposit in court a reasonable security for due performance while on the other hand the applicant stated that he was willing to comply with any conditions imposed by this honourable court for stay of execution of the Kadhi’s judgement.

26. The court in the case of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR dealing with a similar issue stated;“Where the applicant proposes to provide security as the applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the court to determine the security. The applicant has offered to provide security and has therefore satisfied this ground for stay.”

27. It is evident that security is a discretionary issue. The monies in question are in a joint account held by all administrators with the applicant being one of them. Thus it’s my view that the monies are secure and even if the applicant does not succeed in his appeal the respondents will have no difficulties in carrying out execution and therefore I will not order for security.

28. On whether the appeal has a high chances of success, the court in the case of Beatrice Ndunguri Mwai & another v Sicily Wawira Titus & another [2020] eKLR held as follows;“There is no requirement for a party to prove that he has an arguable appeal or one that has chances of success. Where a party has satisfied the above conditions, the court exercises discretion to order a stay. In the exercise of the discretion the court is supposed to do so in a manner that would not prevent the appeal from being heard and determined on merits. This was so held by the Court of Appeal in the case of Bhutt v Rent Restriction Tribunal (1982) KLR 417. The Court of Appeal held that discretion must be exercised in a manner that would not prevent an appeal. The purpose of a stay of execution maybe stated to be a measure to prevent the subject matter so that the right of appeal can be exercised without any prejudice to the applicant as the appeal would be rendered nugatory if stay is not ordered. An applicant in this kind of application invokes the discretionary powers of the court.”

29. Without delving into the merits of the appeal and having gleaned through the grounds of appeal, the appeal seems to raise arguable issues to be determined on appeal. Accordingly, it’s my finding that the applicant has satisfied all conditions under order 42 rule 6 of the CPRS and what is left is for this court to exercise its discretion to order a stay of execution.

30. The upshot of the above is that the application dated January 26, 2022 has merit and is hereby allowed as prayed. Parties to fast track the appeal

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RD DAY OF JUNE 2022…………………….J.N.ONYIEGOJUDGE