[2022] KEHC 1178 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

H.C APPEAL NO. E077 OF 2021

SHEHA ANWAR SAID AZUBEDI........................................................1ST APPLICANT

RYDER ANWAR SAID..........................................................................2ND APPLICANT

ZEINAB ANWAR SAID .........................................................................3RD APPLICANT

VERSUS

LEILA MOHAMED............................................................................1ST RESPONDENT

ZUBEDA SAID.....................................................................................2ND RESPONDENT

FEISAL SAID.......................................................................................3RD RESPONDENT

RULING

1. Before this Court for determination is the Notice of Motion dated 23rd August 2021by which the Applicants seek the following orders:-

“1. Spent.

2. Spent.

3. Spent

4. THAT this Honourable court grants an order for stay of execution of the ruling dated 2nd August and all the subsequent proceedings in Nairobi Kadhi SUCCESSION CAUSE No. 63 of 2019 IN THE MATTER OF THE ESTATE OF SAID ABDALLA AZUBED (DECEASED), LEILA MOHAMED, ZUBEDA SAID, FEISAL SAID - versus – SHEHA ANWAR SAID AZUBEDI, RYDER ANWAR SAID, ZEINAB ANWAR SAID pending the hearing and determination of the appeal

5. THAT the costs of this application be provided for.”

2. The application was premised upon order 42 Rule 6andOrder 51 Rule 1 of the Civil Procedure Rules, 2010, section 1A, 1B, 3, 3Aand63e of the Civil Procedure Act, and all enabling provisions of the law and was supported by two Affidavits sworn by SHEHA ANWARandRYDER ANWAR.

3. The Respondents opposed the application through the Grounds of opposition dated 15th September 2021 and the Replying Affidavit dated 21st September 2021 sworn by LEILA MOHAMED.The Application was canvassed by way of written submissions. The Applicants filed the written submissions dated5th October 2021whilst the Respondent relied upon their written submissions dated 1st November 2021.

BACKGROUND

4. This appeal arises from Nairobi Kadhi Succession Cause Number 63 of 2019 which related to the estate of the late SAID ABDALLA AZUBED.

5. The Appellants are the children of the late Anwar Said Abdallah alias Anwar Said. They filed an objection in Succession Cause Number 63 of 2019claiming that a property known as Title Number Nakuru/Municipality Block 5/108 which belonged to their late father had been fraudulently included as part of the estate of the late Said Abdalla Azubed (Deceased).

6. The Appellants also sought to recover rental income totaling Kshs 53 Millionwhich they claimed had been secretly and/or fraudulently collected from said property over a period of eighteen (18)years.

7. The matter was heard by the Hon Kadhi sitting in Nairobi who in a Ruling delivered on 2nd August 2021 partially allowed the objection. The Hon Kadhi found that the property known as Nakuru/Municipality Block 5/108 belonged to the estate of Anwar Said Abdallah and thus directed that the said property be excluded as an asset in the estate of Said Abdalla Azubed.

8. However regarding the claim made by the applicants for Kshs 53 Million, the Hon Kadhi declined to allow the Applicants prayer seeking a refund of this amount. Being aggrieved by the Ruling, the Applicants filed the Memorandum of Appeal dated 7th August 2021. The Applicants also filed the present application seeking a stay of execution of the ruling delivered by the Hon Kadhi on 2nd August 2021 pending the hearing and determination of their Appeal.

9. The Applicants case is that unless the orders are made staying the execution of the Ruling of the Hon Kadhi, then they stand to suffer substantial loos as the Administrators of the estate of late Said Abdalla Azubed, were likely to proceed to administer and divide the estate before any payment/refund as this amount of Kshs 53 Million claimed by the Applicants.

10. On their part the Respondents opposing the application for stay submit that the Applicants have wrongly sued them in their personal capacity rather than as legal representatives of the estate of the late Said Abdalla Azubed.

11. The Respondents further submit that in his Ruling dated 2nd August 2021, the Hon Kadhi did not make orders directing any party to do any act. That as such since no positive order was made no stay of execution can be granted. That the court cannot issue orders to stay a future action on the part of the Administrators.

12. The Respondents contend that the Applicants are engaged in a mere fishing expedition aimed at delaying the distribution of the estate of the late Said Abdalla Azubed. That there has been no demonstration by the Applicants of what loss if any they are likely to suffer.

13. Finally the Respondents urge that the present application is incompetent, misconceived and bad in law and that the same be dismissed entirely.

ANALYSIS AND DETERMINATION

14. I have carefully considered the application before this court, the Replying Affidavit as well as the written submissions filed by both parties.

15. Order 42 Rule 6 of the Civil Procedure Rules 2010 provides for the circumstances in which a stay pending appeal may be granted as follows:-

“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 subrule (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”.

16. Therefore in determining the merits of this application the court must consider –

(1) Whether the application was filed in a timeous manner.

(2) Whether the Applicant has an arguable appeal.

(3) What security if any ought to be ordered.

17. The question of whether or not to grant a stay of execution is one which is left to the discretion of the court which discretion ought to be exercised in a conscientious and judicious manner.

18. The threshold for stay of proceedings has been illuminated in the passages in Halsbury’s law of England, 4th Edition. Vo. 37 page 330 and 332 as follows:-

“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”

“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”

“It will not be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The application for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

19. In the case of GLOBAL TOURS & TRAVELS LIMITED Nairobi Winding up Cause No. 43 of 2000 Hon Justice Aaron Ringera (as he then was) held as follows:-

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice…the sole question is whether it is in the interest of justice to order for stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And, in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” (own emphasis)

20. The Ruling of the Hon Kadhi was delivered on 2nd August 2021. The Applicants filed this application for stay on 23rd August 2021 about twenty (20) days after the Ruling was delivered. Therefore, I am satisfied that the application was filed in a timeous manner.

21. The Applicants submit that the Respondents are in the process of applying for confirmation of Grant and will thereafter proceed to administrate and subdivide the estate of the late Said Abdalla Abuzed, rending their appeal in respect of the Kshs 53 Millionallegedly owed to the Applicants from the estate nugatory. The Applicants submit that should their appeal succeed the Administrators would not be in a positon to raise this amount of Kshs 53 Million to refund them.

22. I have considered the Memorandum of Appeal. The court is not required at this point to pronounce itself on the question of the appeal. In order not to render said appeal nugatory I do allow this present application for stay of execution SUBJECT TO the Applicants depositing as security amount of Kshs 25 Millioninto a joint interest earning account, opened in the name of Advocates for both parties. This amount to be deposited within thirty days of the Ruling. Failure to comply within 30 days means that the stay of execution will automatically lapse with no further reference to the Applicants. It is so ordered.

DATED IN NAIROBI THIS 11TH DAY OF MARCH 2022.

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MAUREEN A. ODERO

JUDGE