[2019] KEHC 12064 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL CASE NO. 25 OF 2017

IN THE MATTER OF SECTIONS 7, 12, AND 17 OF THE MATRIMONIAL PROPERTY ACT, NO. 49 OF 2013

AND

IN THE MATTER OF AN APPLICATION FOR DIVISION

OF MATRIMONIAL PROPERTY

SNN...................................APPLICANT

VERSUS

CAO.............................RESPONDENT

AND

DCMO....1ST INTERESTED PARTY

IIOO.......2ND INTERESTED PARTY

RPMO....3RD INTERESTED PARTY

RULING

1. The applicant SNM and the respondent CAO were married for about 21 years (between 1996 and 2017) during which time they got two children who are adults. The applicant sued the respondent for the settlement of matrimonial property. On 26th September 2019 this court determined the dispute by finding that their contribution to the acquisition of several of their matrimonial property was 30%:70% in favour of the respondent. There was a rural home on 30 acres in Kitale. The court gave each party 15 acres of the home, with the house going to the applicant. Of interest to this application, however, is the one acre home at Karen on LR No. xxxxx/x Kumbe Road. The parties lived here for about 20 years, but the same had been bought and developed by the respondent and his first wife DCMO (1st interested party) who lives in the United Kingdom. The court found that the applicant had no claim to the property. Following the judgment, the respondent asked the applicant to vacate the home.

2. The applicant appealed against the entire judgment of this court to the Court of Appeal. She then filed the present application under Order 42 rule 6of the Civil Procedure Rules for stay pending the hearing and determination of the appeal. In support of the application she swore that she and the respondent had equally contributed to the acquisition and development of all the matrimonial property and therefore the decision of the court that she had contributed only 30% had aggrieved her. Further, the respondent had given her notice to vacate LR No. xxxxx/x at Karen where she and her children had lived for the last 20 years, and which house was her matrimonial home. She stated that if there is no stay she stood to suffer –

“substantial loss, irreparable harm, immense prejudice, a serious travesty of justice as well as heightened impunity.”

Further, that appeal, if successful, would be rendered nugatory.

3. The interested parties filed grounds of opposition. Their case was that the court was functus officio; it had no jurisdiction to hear and determine the application; there was no demonstration of substantial loss if the application is not granted; and that no security had been offered.

4. The respondent filed a replying affidavit to oppose the application. Most of the affidavit defended the decision of this court. However, on whether there was prove of substantial loss if stay is not granted, he stated that the court had allocated the Kitale home to the applicant where she could stay with her children; that LR No. xxxxx/x that she states is her home was never hers from the beginning as it belonged to him and the 1st interested party; and that the application for stay was intended to deny him of the fruits of the judgment.

5. Mr Omari for the applicant, Ms Guserwa for the respondent and Mr. Madowo for the interested parties filed written submissions on the application. I have considered what each counsel had to say.

6. This court rendered a judgment to distribute matrimonial property between the applicant and the respondent. The applicant was aggrieved by the judgment and preferred an appeal to the Court of Appeal. This court has jurisdiction under Order 42 rule 6(1) of the Civil Procedure Rules to grant or not to grant stay of the execution of the resultant decree pending the hearing and the determination of the appeal. This is what is provided in Order 42 rule 6(1):-

“(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.”

7. It follows that, the allegation that this court lacks jurisdiction to grant or not to grant stay of execution of decree pending the determination of the appeal is without basis. Similarly, it is not true that this court is fanctus officio in relation to the application. The court is properly seized of the application.

8. What the court is called upon to determine is whether or not the applicant has made a case for the stay of the decree pending the appeal. Order 42 rule 6(2) of the Rules sets out the conditions applicable in determining the application. As was reiterated in Kiplagat Kotut –v- Rose Jebor Kipngok [2015]eKLR, the rule requires that the applicant shows that she will suffer substantial loss if stay is not granted; that the application has been brought without unreasonable delay; and that she has offered security for the due performance of the decree that may ultimately be binding on her.

9. There is no dispute that the application for stay was brought timeously. However, no security was offered. There court is left to decide whether or not the applicant has shown that she will suffer substantial loss if stay is not granted.

10. In dealing with the issue of substantial loss, I consider that the main objective of staying a decree is to protect the subject matter of the suit by delaying the execution process until the determination of the appeal (E.W.M. –v- M.O.M.; A.N.M. & Another (Interested Party) [2019]eKLR). Secondly, I consider that in such an application for stay, the court is dealing with two competing interests. The respondent should not be denied the fruits of his judgment, and the applicant, who was the unsuccessful litigant, is exercising her undoubted right of appeal, and therefore should be protected against the appeal being rendered nugatory (Kenya Commercial Bank Limited –v- Sun City Properties Limited and 5 Others [2012]eKLR). This is why the applicant was required to provide security for the due performance of the decree as the parties wait for the outcome of the appeal.

11. The applicant had requested this court to determine that her contribution to the acquisition and development of the various matrimonial properties was equal to that of the respondent. The court found that her contribution was 30% and that of the respondent was 70%. In respect of Karen LR No. xxxxx/x the court found that it was bought and developed exclusively by the respondent and the 1st interested party. The applicant had not been married to the respondent by then. When the interested party moved to the United Kingdom, the respondent moved the applicant to stay in the home. She had otherwise been occupying the house at [particulars witheld] Estate. In respect of Siwaka house I gave her 30% of it. The parties had their rural home on 30 acres in Kitale. The respondent offered 15 acres and the house thereon to her, which the court confirmed. The applicant’s case is that her removal from the Karen home where she had stayed for about 20 years with her children will cause her substantial and irreparable loss and harm. The applicant has, since the judgment, been asked by the respondent to vacate the Karen house. It is material that the applicant and the respondent have divorced, and therefore the 1st interested party remains the only wife. The case by the respondent and the interested party was that the Karen house belongs to the latter as her matrimonial home.

12. For the rest of the properties, the applicant will be seeking on appeal that her contribution be increased from 30% to 50% for each. Each property has a value that can be determined.

13. The applicant did not tender any evidence to show that the respondent is seeking to sell, or otherwise dispose of, any of the matrimonial properties, including the Karen home. There is, therefore, no demonstrated prospect that any of these properties will not be there at the time the appeal is heard and determined. Lastly, it was not shown that in the event that any of the properties is sold the respondent would not have the means to make good.

14. The result is that, it has not been shown that the applicant will suffer substantial loss if stay of the execution of the decree is not granted. The application for stay dated 9th October 2019 has no merits and is dismissed.

15. Costs shall follow the event.

DATED and DELIVERED at NAIROBI this 28TH day of NOVEMBER, 2019.

A.O. MUCHELULE

JUDGE