PROBATE AND ADMINISTRATION APPEAL NO. 7 OF 2023
BONIFACE BUNDI MUCHEMI……………………………….APPELLANT
-VERSUS-
MARY WATURI WAMBUGU……………………..……1ST RESPONDENT
PHILIP WANJOHI WAMBUGU………………..…….2ND RESPONDENT
PRISCILLA MUTHONI WAMBUGU…………………3RD RESPONDENT
RULING
- Before this Court for determination is the Notice of Motion dated 8th June 2023 by which the Applicant BONIFACE BUNDI MUCHEMI seeks the following orders;-
“(a) Spent.
(b) Spent.
(c) That there by a stay of the order and Ruling of the Senior
Resident Magistrate, Honourable M. M. Gituma dated 17th
May, 2023 Succession Cause No. 96 of 1974 pending the
hearing and determination of the instant Application and
Appeal.
(d) That a temporary injunction to issue restraining the
respondents, their assigns and agents from disposing,
transferring or interfering in any way with land Parcels
TETU KIRITI/937 and TETU KIRITI/938.
(e) That the court adds Lydiah Wangechi Wambugu and Emma
Wambugu the daughters of the deceased and current
holders of TETU KIRITI/937 and TETU KIRITI/938
respectively as interested parties.
(f) THAT costs of this Application be in the appeal.”
2. The Applicant deponed that he had been born on the property known as
TETU/KIRITI/135 which property was originally registered in the
name of his Grandfather one MAINGI NDIANGUI. That the said Plot
135 was later fraudulently transferred to HARUN WAMBUGU
MUCHEMI as the sole proprietor.
3. That Harun Wambugu Muchemi therafter subdivided the land into
two parcels being TETU KIRITI/1937 and TETU KIRITI/938, which
two parcels were gifted to the daughters of Harun Muchemi
Wambugu namely LYDIAH WANGECHI WAMBUGU and EMMA
WAMBUI WAMBUGU (the 4th and 5th Respondents herein).
4. The Applicant stated that pursuant to the court ruling he was apprehensive
that he may be evicted from the suit land which would render his appeal
nugatory. He averred that in order to meet the ends of justice the 4th and
5th Respondents ought to be added as interested parties to the suit.
Finally the Appellant argued that he stood to suffer substantial loss if the
orders of stay were not granted.
5. On 4th July, 2023 Hon. lady Justice F. Muchemi granted a stay of
Ruling of 17th May, 2023 and also granted a temporary injunction
restraining the Respondents, their assigns and agents from disposing of
or interfering with LR TETU KIRITI 1937 and TETU KIRITI/938
(hereinafter ‘the suit properties’). The above Interim Orders were to
remain in force pending hearing and determination of the Application
dated 8th June, 2023.
6. The Respondents MARY WATURI WAMBUGU and PHILIP WANJOHI
WAMBUGU filed a Notice of Preliminary Objection dated 13th July
2023. This Preliminary Objection was heard by this court and was
dismissed vide the ruling delivered on 27th May 2024.
7. The Applicants have now opted to canvass their application dated 8th
June 2023, which application was canvassed by way of written
submissions. The Applicants filed the written submissions dated 20th
September 2024. The Respondents filed the submissions dated 28th
March 2024.
BACKGROUND
8. The genesis of this application are the orders made in Succession Cause
No. 96 of 1974 by Hon. M. M. GITUMA Senior Resident Magistrate
on 17th May 2023.
9. The succession cause relates to the estate of the late MAINGI S/O
NDIANGUI (hereinafter ‘the Deceased’) who died on 19th January
1968. Following the demise of the Deceased Grant of letters of
Administration were issued to HARUN WAMBUGU MUCHEMI which
Grant was duly confirmed on 2nd January 1975.
10. Thereafter on 22nd March 2023 the Applicant BONIFACE BUNDI
MUCHEMI filed a Summons seeking revocation of the Grant issued in
respect of the estate of the Deceased.
11. That Summons was heard in the lower court and vide the Ruling
delivered on 17th May 2023 the same was dismissed in its entirety.
The Applicant then filed this present application seeking a stay of the
orders made on 17th May 2023 as well as seeking an Interim injunction
to prevent any dealings with estate property.
ANALYSIS AND DETERMINATION
12. I have carefully considered the application before this court as well as
the written submissions filed by both parties.
13. It is trite law that filing an appeal does not in and of itself operate as a
stay of execution. The law sets out certain conditions which an applicant
meet before a stay of execution may be granted.
14. Stay of Execution pending Appeal is provided for under Order 42 Rule
6 (2) of the Civil procedure Rules which sets out the principles that
the court should consider while deciding whether to grant a stay or not.
These are:-
“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
- 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.”
15. From the foregoing, the Applicant should satisfy the court that:
(a) Substantial loss may result to him unless the order is
made;
(b) That the application has been made without
unreasonable delay; and
- The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
16. The Applicant has sought a stay of the ruling and orders made by the
trial court. Exactly what orders is he seeking to stay. I have perused
the Ruling delivered on 17th May 2023 and I find that no orders
directing any party to do or to desist from doing any particular act were
made. The ruling merely dismissed the summons seeking revocation
of the Grant.
17. An order dismissing a suit or an application is a ‘negative order’ which
cannot be stayed as such an order is incapable of execution.
18. In the case of CO-OPERATIVE BANK OF KENYA LIMITED -VS-
BANKING INSURANCE & FINANCE UNION (Kenya) [2015]
eKLR, the court of Appeal stated as follows:-
“An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance pre-supposes the existence of a situation to stay called a positive order – either an order that has not been complied with or has partly been complied with”[own emphasis]
19. Likewise in the case of RAYMOND M. OMBOGE -VS- AUGUSTINE
PYAN MARANGA KISII HCCA NO. 15/2010 the court held that a
negative order was incapable of being stayed. In that case the court
stated that;-
“The order dismissing the application is in the nature of a negative order and is incapable of stay of execution save perhaps for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such order……. The Applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issue of substantial loss that he is likely to suffer or the appeal being rendered nugatory does not arise…….’ (own emphasis)
20. Applying the above principles to this case I find that since the order
being appealed against is a negative order, the Applicants prayer for a
stay of execution cannot lie. That prayer is hereby dismissed.
21. The Applicants have sought for interim interlocutory orders to prevent
any further dealings with the parcels of land known as TETU
KIRITI/937 and TETU KIRITI/938.
22. The grounds on which an interlocutory injunction may be given are well
established in the case of GIELLA -VS- CASMAN BROWN [1973]
E.A 358. Moreover such injunctions are ordinarily granted in order to
preserve the subject matter of the suit pending hearing and
determination of the main suit. This is a suit which has already been
heard and determined. The matter is now pending appeal.
23. It is not the duty of this court to discuss the merits or otherwise of the
intended appeal. This is a case where a decision has been made by a
court of competent jurisdiction. That decision remains binding until the
same is set aside by an appellate court.
24. Finally this prayer for interim injunction is merely a way of seeking
a stay in a roundabout way. This court has already determined that a
stay is not merited. I therefore decline the prayer for an interim
injunction.
25. Finally the Applicants seek to enjoin the daughters of the Deceased as
parties to the suit. This application must be served upon the two to
enable them respond to the application.
26. Finally I find no merit in this application. The Notice of Motion dated
8th June 2023 is hereby dismissed in its entirety. Costs will be met by
the Applicants.
Dated in Nyeri this 21st day of February, 2025