[2024] KEHC 7619 (KLR)

YAA v MAA (Civil Appeal E043 of 2024) [2024] KEHC 7619 (KLR) (20 June 2024) (Ruling)

Neutral citation: [2024] KEHC 7619 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E043 of 2024

EM Muriithi, J

June 20, 2024

Between

YAA

Appellant

and

MAA

Respondent

Ruling

1. By a certificate of urgency dated 21/3/2024 pursuant to Sections 1A, 1B, 3, 3A & 64 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules, the Appellant seeks that:1. Spent

2. Spent

3. This Honorable Court be pleased to order stay of execution of the ruling Orders issued on 01/03/2024 pending the hearing and determination of intended Appeal.

4. This Honorable Court be pleased to issue any further orders in the interest of justice.

5. The costs of this application be in the cause.

2. The application is premised on the grounds on the face of it and supporting affidavit of YAA, the Appellant herein sworn on even date. Vide a ruling of 1/3/2024, the Honorable Kadhi’s Court gave various orders to wit Plot No. Isiolo/Jua Kali x/x and other titles do revert to the name of the deceased before subdivision and the transfer and be dealt with as per the law. He is seriously aggrieved by the said decision and has since filed his appeal against it. During the lifetime of the deceased, he was working in the UK and he used to send monies to his father, the deceased herein, to buy properties for him in Kenya. His father purchased for him several properties to wit Isiolo x/x, Dozer 06 registration number KBE xxx B, dozer xx, Shovel machine registration No. KBA xxx A, fiat tipper registration No. KAG xxx, Land Cruiser registration No. KSM xxx and the implementation of the impugned ruling will lead to loss of his properties. He will be rendered homeless if the allotment of Plot No. Isiolo/Jua Kali x/x to his name is revoked. Unless stay is granted, he will suffer substantial loss and damage since he has heavily invested on Plot No. Isiolo/Jua Kali x/x and extensively developed it. The application is made in good faith, without unreasonable delay, has been brought in the interests of justice and the Respondent will not suffer any prejudice is the application is allowed.

3. The application has not responded to.

4. The parties were directed to file written submissions but at the time of writing this ruling, none had been filed.

Determination 5. The law concerning applications for stay of execution of a Judgment and/or Ruling is well espoused in the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 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.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 Appellant unless the order is made and that the application has been made without unreasonable delay.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 Appellant.”

6. This court respectfully agrees with the Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 that the power to grant stay is discretionary and such discretion should be exercised in such a way as not to prevent an appeal.

7. This court notes that the application was filed timeously and without unreasonable delay on 21/3/2024 while the decision sought to be appealed against was made on 1/3/2024.

8. The court considers from the grounds of appeal as raised in the Appellant’s memorandum of appeal, particularly that some of the properties belonged to the children of the deceased, that the appeal is indeed arguable, which is not one which must necessarily succeed and neither is it for the court to go into the merits of the intended appeal.

9. This court finds that the denial of Appellant and other beneficiaries of their rightfully hard- earned properties, is substantial loss.

10. This appeal emanates from succession proceedings, where security for the due performance of the decree may be impractical.

Orders 11. Accordingly for the reasons set out above, this court allows the application dated 21/3/2024 on the following terms:-1. An order for stay of execution of the ruling and orders issued on 1/3/2024 pending the hearing and determination of the intended appeal is hereby issued.2. The Record of Appeal to be filed within 60 days from the date hereof.3. In the event of default, the stay of execution shall lapse and be of no effect.4. The costs of this application shall abide the outcome of the appeal.

Order accordingly.

DATED AND DELIVERED ON THIS 20TH DAY OF JUNE 2024. EDWARD M. MURIITHIJUDGEAppearances:Mr. Mutegi for Appellant.Mr. Kaberia for the Respondent.