- The applicant filed the application dated 8.12.23 seeking :
- …………………………………………………………………………….spent.
- THAT this Honourable Court be pleased to grant Stay further proceedings in this case pending hearing and determination of Appeal no. 306 of 2019 filed in the court of appeal on 31.12.19.
- …………………………………………………………………spent .
- THAT this Honourable Court be pleased to grant Stay of execution of the Judgment of this court delivered on 27.11.19 pending hearing and determination of Appeal no. 306 of 2019 filed in the court of appeal on 31.12.19.
- Costs be in the cause.
- The application is based on the grounds on the face of it and the annexed affidavit of Richard Otundo .
- The applicant told the court that he was dissatisfied with the judgment of this court dated 27.11.19 and he proceeded to Court of Appeal at Kisumu and lodged appeal no 306 of 2019 vide memorandum of appeal dated 31.12.19 .The objectors/respondents later on moved this Court seeking annulment of grant on 15.11.19. That the objectors are not sincere as the application was filed after he moved the court of appeal . Further that the applicants have always delayed the case and have not come to court with clean hands
- The 3rd Respondent filed her replying affidavit dated 24.1.24 in opposition to the said application . She deponed that the appeal was filed without leave of this court and is not arguable. Also that the beneficiaries shall be prejudiced by the stay as the applicant transferred land parcel Central Kitutu / Mwamosioma /2790 to his name . Also that substantial loss has not been established and that no Notice of appeal memorandum of appeal other than the draft memorandum of appeal had been filed. She termed the application misconceived and bad in law.
- I have carefully considered the application, the response and the submissions . Order 42 Rule 6 of the Civil Procedure Rules which provides as follows:
6. (1) 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 sub rule (1) unless— (a) the court is satisfied thatsubstantial 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.
In the case of James Wangalwa & another v Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR, it was held ‘’
No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein Vs .Chesoni [2002] 1KLR 867, and also in the case of Mukuma Vs. Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
In the case of Rhoda Wairimu Kioi & John Kioi Karanja v Mary Wangui Karanja and Salome Njeri Karanja, CA Civil App. NAI 69 of 2004; where it was held;
“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High Court or where the application for leave is refused with leave of this court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration. We think this is a good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes. So, what is our determination in this application? We have found that the application was presented out of time; that the applicant lacked capacity to bring it at the time he did; that leave of the High Court in succession matters is necessary in the former’s exercise of its original jurisdiction; and that where application for leave has been rejected by the High Court, it can be made to this court.”
11. On whether an arguable appeal has been filed , for stay pending appeal to be granted , there must be a pending appeal . The applicant argued that he has filed an appeal in the court of appeal while the respondents said that no such appeal exists I have carefully considered Draft memorandum (RMO 1) of appeal dated 31.12.2019 endorsed by the Deputy registrar court of appeal Kisumu . The same does not bear the stamp of the court. Further that from the heading it is a mere draft document and not a substantive one . It is clear to me that the said document is not a memorandum of appeal but a mere draft memorandum of appeal . I am not satisfied that an appeal has been filed .
12, On whether there was undue delay in filing the application the judgment was delivered on 27.11.19 yet the application herein was filed on 14.12.23 .No certificate of delay was filed to explain the delay. I find that the delay was not plausible.
13. On the issue of security , Order 45 of the Civil procedure rules only applies there is a filed appeal . I have already found that there is no appeal and so the issue of furnishing security does not apply.
14. On whether stay of proceedings can be granted , it is trite law that stay of proceedings is granted sparingly and the court must weigh the rights of the applicant against those of the respondent and in granting the same and must ensure fair and expeditious trial . In the case of Kenya Wildlife Services v James Mutembei [2019] eKLR, the Court held that:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation.it impinges on right of access to
justice, right to be heard without delay and overallright to fair trial. Therefore the test for stay of proceedings is high and stringent.”
In his case the appeal has not been filed and thus stay of proceedings does not apply .
15. The application dated 8.12.23 neither meet the threshold for grant of stay of proceedings nor stay pending appeal . I proceed to dismiss it with costs . Mention on 19.3.25 all beneficiaries be availed .
Delivered virtually in the presence of
Mr Edward Ashitiba for the applicant
CA :Oigo
N/A for respondents