[2011] KEHC 3249 (KLR)
The court declined to grant a stay of execution because the appellants failed to provide the extracted order from the Chief Magistrate's Court, making it impossible for the High Court to ascertain the exact terms of the order they sought to stay or to consider any modification. Furthermore, the court recognized the...
Source-derived case information.
- Citation
- [2011] KEHC 3249 (KLR)
- Parties
- Appellant: Stephen Ntoribi; Appellant: Stanley Gachui; Respondent: Naomi Kainda Stanley
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Application
- Outcome
- application for stay of execution dismissed with costs to the respondent
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Injunctive Relief, Matrimonial Property Rights, Equal Rights in Marriage, Purchaser for Value, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Ntoribi
Appellant
Stanley Gachui
Appellant
Naomi Kainda Stanley
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Application
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution of the injunctive orders issued by the Chief Magistrate's Court.
- 2 Whether the respondent, as a spouse, has a right to challenge dealings with matrimonial property without her consent.
Ratio Decidendi
The court declined to grant a stay of execution because the appellants failed to provide the extracted order from the Chief Magistrate's Court, making it impossible for the High Court to ascertain the exact terms of the order they sought to stay or to consider any modification. Furthermore, the court recognized the respondent's constitutional right as a spouse to challenge dealings with matrimonial property, as enshrined in Article 45(3) of the Constitution of Kenya 2010. The court found that these constitutional protections provided sufficient reason to refuse the stay, especially in the context of alleged secret dealings with matrimonial property without spousal consent. The application...
Court Disposition
application for stay of execution dismissed with costs to the respondent
Orders
- The Notice of Motion dated 20th January 2011 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
CIVIL PRACTICE AND PROCEDURE
·Stay of execution.
·The constitution recognizes equal rights in marriage.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HIGH COURT CIVIL APPEAL NO. 12 OF 2011
STEPHEN NTORIBI ...............................................................................1ST APPELLANT
STANLEY GACHUI ................................................................................2ND APPELLANT
VERSUS
NAOMI KAINDA STANLEY........................................................................RESPONDENT
RULING
The appellants Stephen Ntoribi (Stephen) and Stanely Gachui (Stanely) have filed this appeal against the ruling in CMCC Meru No. 582 of 2010 delivered on 13th January 2011. The appellants did not file a copy of that ruling or its extracted order but states in their application by Notice of Motion dated 20th January 2011 that the Chief Magistrate court in that ruling issued orders of injunction which according to the appellants were tantamount to the orders of eviction from parcel number 1423 Kithurine Adjudication Section (the suit property).That Notice of Motion seeks the stay of execution of the order in the ruling of the chief magistrate’s court. Stephen stated in his affidavit in support of the application that he purchased from the 2nd appellant the suit property and he is an innocent purchaser for value. He further deponed that he is in possession of that land. The respondent Naomi Kainda Stanley did not file a replying affidavit but from the documents annexed to the appellant’s application, it is clear that she is the wife of Stanely. The claim in the chief magistrate’s court Naomi alleged that Stanley secretly and without her consent attempted to sell the suit property to Stephen. The lower court granted injunctive orders against both appellants as stated above in this ruling. As I make this ruling, I am cautious not to overstep my mandate since the appeal itself is not before me. However, by the provisions of the Constitution of Kenya 2010 under Article 45 (3) is the principle of equal rights in a marriage is recognized. That Article provides as follows:-
“45 (3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”
Whether or not the article extends to this case before the chief magistrate court, we have to await the final determination by that court. However, the Article quoted above shows sufficient reason why this court should decline to grant the stay that is sought. As said before, the appellants did not provide this court with an extracted order for which they seek stay.I therefore do not know the exact terms of the ruling in the chief magistrate’s court. Had I known, I might have modified the order where necessary. However as stated under the Constitution, Naomi has a right to challenge dealings with land owned by her husband the 2nd appellant. It is for those reasons that the notice of Motion dated 20th January 2011 is dismissed with costs to the respondents in this appeal.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE