Introduction
1. The Honourable Principal Kadhi delivered a ruling on 25th January 2024 in Kadhi Court Succession Cause No. E080 of 2019; Leila Mohamed & others –vs- Swaleh Athman & others. The ruling denied the appellants/applicants 3 of the orders they sought in the motion dated 17th August 2023. Aggrieved by the decision, the appellant/applicants filed the memorandum of appeal dated 21st February 2024.
The Notice of Motion dated 11th March 2024
2. The appellants/applicants filed a Notice of Motion dated 11th March 2024, vide which they sought the following orders:-
1. Spent;
2. Spent;
3. This honourable Court do stay execution of the judgment herein and all subsequent orders made thereafter in KCSC No E080 of 2019; Leila Mohamed & others –vs- Swaleh Athman & others pending the hearing and determination of the appeal herein;
4. Spent;
5. The administrators herein, that is Leila Mohamed Athman, Amina Mohamed Athman, Rashid Mohamed Athman, Salim Mohamed Athman and Hamisi Mohamed Athman, and or the signature to the bank accounts in respect of the estate herein Laila Mohamed Athman, Amina Mohamed Athman, Rashid Mohamed Athman, Salim Mohamed Athman, Mohamed Mohamed Athman and Riziki Mohamed Athman be restrained from withdrawing funds from the estate bank accounts, that is account number 0100006739827 at Stanbic Bank Ltd and 0052050000594 at Rafiki Bank Ltd unless there is a written consent of all the administrators approving the withdrawal of the funds from the accounts pending the hearing and determination of the application; and
6. Costs of the application.
3. The application is supported by the annexed affidavit of Leila Mohamed Athman, sworn on 11th March 2024, and the grounds stated in the motion. The applicants state that if the stay is not granted, some or all the properties forming part of the deceased’s estate will be sold before the distribution of the estate is finalized and/or completed. It is argued that if a sale takes place, the appeal filed herein will be rendered nugatory, and the appellants/applicants and other beneficiaries shall suffer irreparable loss and damage as they shall be deprived of the properties to which they are entitled. The appellants/applicants accuse the respondents of wanting to dispose of the house and the property they are occupying, which action shall render them homeless. Lastly, they aver that the administrators intend to withdraw funds from the estate account without consulting the 1st appellants/applicants.
The Responses filed by the Respondents
4. The application is opposed. The respondent, through the firm of AB Olaba & Co Advocates, filed grounds of opposition dated 3rd May 2024, vide which they averred that the application is frivolous, vexatious, mischievous and otherwise an abuse of the process of the Court. They aver that the impugned judgment was delivered on 7th November 2019 and that the Applicants had been silent and were thus guilty of laches. It was averred that the Appellant/Applicants had not obtained nor sought leave of this honourable Court to appeal against the impugned judgment out of time, nor had the consent of all the beneficiaries been sought or obtained. Lastly, it was averred that the judgment had been partly executed.
5. The respondents also filed a replying affidavit sworn on 6th May 2024 by Swaleh Athman in which he accused the 1st appellant/applicant of not disclosing that she was one among the petitioners for grant in the proceedings in the Court below and that the grant was issued in her favour, together with Hamisi Athman Mohamed (deceased) Rashid Athman Mohamed, Amina Athman Mohamed and Salim Athman Mohamed and that to ease the administration of the estate the Kadhi Court issued a vesting order to the administrators on 11th March 2022 vesting the properties therein enumerated. Pursuant to the vesting order, the administrators jointly effected the sale and transfer of one of the properties mentioned thereon and distributed the proceeds to the beneficiaries. The deponent accused the appellant/applicants of failing to disclose to the Court that they had partly executed the decree they sought to stay or set aside.
The Supplementary Affidavit of the Appellants/Applicants
6. The appellants/applicants, through Leila Mohamed Athman, filed a Further Affidavit sworn on 30th May 2024. The deponent averred that the appeal was against the Honourable Kadhi's decision to distribute the estate without giving legal reasons. She further averred that she fully disclosed the relevant matters and that there was nothing she failed to disclose as had been alleged. She accused the Respondents of introducing matters that weren’t before the Kadhi’s Court.
The Written Submissions of the Parties
7. The application was canvassed by way of Written Submissions.
8. The appellant/applicants filed Written Submissions dated 30th May 2024. In the submissions, reliance was placed on the provision of order 42 Rule 6(2) of the Civil Procedure Rules.
9. It was averred that the appellant/applicants would suffer a substantial loss as there was a clear and present risk that their residence would be sold. The sale would render their appeal nugatory.
10. It was also urged that the appellants/applicants have an arguable appeal. Regarding security, it was urged that the deceased’s estate itself was sufficient. Counsel for the appellants/applicants thus prayed that I allow the application.
11. The respondents filed Written Submissions dated 8th July 2024 through their counsel. The respondents averred that I should dismiss the application. Counsel urged that no evidence had been adduced by Leila Mohamed Athman that the administrators, either singly or jointly, had withdrawn or attempted to withdraw any funds from the said bank accounts or that there had been an attempt to sell the house that the Appellants/ Applicants dwell in. It was urged that the appeal was meant to delay the distribution of the deceased's estate.
Analysis and Determination
12. I have considered the application, the affidavit in support thereof, the respondents' responses, and the parties' written submissions. I must determine if the test in Order 42 Rule 6(2) of the Civil Procedure Rules has been met.
13. The purpose of stay of execution was considered in the case of RWW vs EKW [2019]eKLR. In the said case, the Court pronounced itself as follows:-
“the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal, are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so the Court, should weight this right against the success of a litigant who should not be deprived of the fruits or his or her judgment...”
14. The determination of an application for a stay of execution pending appeal is an exercise of discretion by the Court. As with all discretionary powers, the Court must exercise them judiciously and sagaciously, on sound principles, and not capriciously. The Court must also balance the competing interests and make a decision that best protects those interests.
15. Order 42 Rule 6(2) of the Civil Procedure Rules provides that:-
“(2) 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
(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.”
16. In my view, the appellants/applicants must show that:-
1. They will suffer substantial loss unless the orders prayed for are issued;
2. The application was filed without delay; and
3. That security for the due performance of the decree has been granted/offered.
17. These requirements are conjunctive and not disjunctive. They must all be present for an order, staying execution of the decree or order of the Court, to issue.
18. I will now look at each requirement and determine if they have been satisfied.
Will the Appellants/Applicants Suffer Substantial Loss
19. What amounts to substantial loss was discussed in the case of James Wangalwa & another vs Agnes Naliaka Cheseto [2012]eKLR. The Court stated that:-
“11.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 V 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.”
20. The appellants/applicants aver that if the stay is not granted, the house they are dwelling will be sold, and such a sale would result in a substantial loss to them. My reading of the replying affidavit is that the fear is not unfounded. There is a clear and present risk that the subject estate may be sold. In my view, the sale will cause substantial loss to the appellants/applicants.
Was the Application filed without Undue Delay?
21. The impugned decision was made on 25th January 2024. This application was filed on 11th March 2024. What amounts to undue delay is dependent on the circumstances of each matter. In my view, the period taken by the appellants/applicants was not undue. In the circumstances, I find and hold that the second test has been satisfied.
Provision of security
22. As this is a family matter, the Court is of the opinion that the provision of security is inapplicable.
Orders of the Court
23. I find and hold that the application has merit. Consequently, I stay the execution of the ruling of the Hon Kadhi delivered on 25th January 2024. I also order that the estate accounts be preserved until the appeal is heard and determined.
24. As this is a family matter, each party shall bear its costs.
25. Orders accordingly.
DATED and SIGNED at Mombasa this 12th day of August 2024. Delivered virtually via Microsoft TEAMS.
Gregory Mutai
JUDGE
1. The Honourable Principal Kadhi delivered a ruling on 25th January 2024 in Kadhi Court Succession Cause No. E080 of 2019; Leila Mohamed & others –vs- Swaleh Athman & others. The ruling denied the appellants/applicants 3 of the orders they sought in the motion dated 17th August 2023. Aggrieved by the decision, the appellant/applicants filed the memorandum of appeal dated 21st February 2024.
The Notice of Motion dated 11th March 2024
2. The appellants/applicants filed a Notice of Motion dated 11th March 2024, vide which they sought the following orders:-
1. Spent;
2. Spent;
3. This honourable Court do stay execution of the judgment herein and all subsequent orders made thereafter in KCSC No E080 of 2019; Leila Mohamed & others –vs- Swaleh Athman & others pending the hearing and determination of the appeal herein;
4. Spent;
5. The administrators herein, that is Leila Mohamed Athman, Amina Mohamed Athman, Rashid Mohamed Athman, Salim Mohamed Athman and Hamisi Mohamed Athman, and or the signature to the bank accounts in respect of the estate herein Laila Mohamed Athman, Amina Mohamed Athman, Rashid Mohamed Athman, Salim Mohamed Athman, Mohamed Mohamed Athman and Riziki Mohamed Athman be restrained from withdrawing funds from the estate bank accounts, that is account number 0100006739827 at Stanbic Bank Ltd and 0052050000594 at Rafiki Bank Ltd unless there is a written consent of all the administrators approving the withdrawal of the funds from the accounts pending the hearing and determination of the application; and
6. Costs of the application.
3. The application is supported by the annexed affidavit of Leila Mohamed Athman, sworn on 11th March 2024, and the grounds stated in the motion. The applicants state that if the stay is not granted, some or all the properties forming part of the deceased’s estate will be sold before the distribution of the estate is finalized and/or completed. It is argued that if a sale takes place, the appeal filed herein will be rendered nugatory, and the appellants/applicants and other beneficiaries shall suffer irreparable loss and damage as they shall be deprived of the properties to which they are entitled. The appellants/applicants accuse the respondents of wanting to dispose of the house and the property they are occupying, which action shall render them homeless. Lastly, they aver that the administrators intend to withdraw funds from the estate account without consulting the 1st appellants/applicants.
The Responses filed by the Respondents
4. The application is opposed. The respondent, through the firm of AB Olaba & Co Advocates, filed grounds of opposition dated 3rd May 2024, vide which they averred that the application is frivolous, vexatious, mischievous and otherwise an abuse of the process of the Court. They aver that the impugned judgment was delivered on 7th November 2019 and that the Applicants had been silent and were thus guilty of laches. It was averred that the Appellant/Applicants had not obtained nor sought leave of this honourable Court to appeal against the impugned judgment out of time, nor had the consent of all the beneficiaries been sought or obtained. Lastly, it was averred that the judgment had been partly executed.
5. The respondents also filed a replying affidavit sworn on 6th May 2024 by Swaleh Athman in which he accused the 1st appellant/applicant of not disclosing that she was one among the petitioners for grant in the proceedings in the Court below and that the grant was issued in her favour, together with Hamisi Athman Mohamed (deceased) Rashid Athman Mohamed, Amina Athman Mohamed and Salim Athman Mohamed and that to ease the administration of the estate the Kadhi Court issued a vesting order to the administrators on 11th March 2022 vesting the properties therein enumerated. Pursuant to the vesting order, the administrators jointly effected the sale and transfer of one of the properties mentioned thereon and distributed the proceeds to the beneficiaries. The deponent accused the appellant/applicants of failing to disclose to the Court that they had partly executed the decree they sought to stay or set aside.
The Supplementary Affidavit of the Appellants/Applicants
6. The appellants/applicants, through Leila Mohamed Athman, filed a Further Affidavit sworn on 30th May 2024. The deponent averred that the appeal was against the Honourable Kadhi's decision to distribute the estate without giving legal reasons. She further averred that she fully disclosed the relevant matters and that there was nothing she failed to disclose as had been alleged. She accused the Respondents of introducing matters that weren’t before the Kadhi’s Court.
The Written Submissions of the Parties
7. The application was canvassed by way of Written Submissions.
8. The appellant/applicants filed Written Submissions dated 30th May 2024. In the submissions, reliance was placed on the provision of order 42 Rule 6(2) of the Civil Procedure Rules.
9. It was averred that the appellant/applicants would suffer a substantial loss as there was a clear and present risk that their residence would be sold. The sale would render their appeal nugatory.
10. It was also urged that the appellants/applicants have an arguable appeal. Regarding security, it was urged that the deceased’s estate itself was sufficient. Counsel for the appellants/applicants thus prayed that I allow the application.
11. The respondents filed Written Submissions dated 8th July 2024 through their counsel. The respondents averred that I should dismiss the application. Counsel urged that no evidence had been adduced by Leila Mohamed Athman that the administrators, either singly or jointly, had withdrawn or attempted to withdraw any funds from the said bank accounts or that there had been an attempt to sell the house that the Appellants/ Applicants dwell in. It was urged that the appeal was meant to delay the distribution of the deceased's estate.
Analysis and Determination
12. I have considered the application, the affidavit in support thereof, the respondents' responses, and the parties' written submissions. I must determine if the test in Order 42 Rule 6(2) of the Civil Procedure Rules has been met.
13. The purpose of stay of execution was considered in the case of RWW vs EKW [2019]eKLR. In the said case, the Court pronounced itself as follows:-
“the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal, are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so the Court, should weight this right against the success of a litigant who should not be deprived of the fruits or his or her judgment...”
14. The determination of an application for a stay of execution pending appeal is an exercise of discretion by the Court. As with all discretionary powers, the Court must exercise them judiciously and sagaciously, on sound principles, and not capriciously. The Court must also balance the competing interests and make a decision that best protects those interests.
15. Order 42 Rule 6(2) of the Civil Procedure Rules provides that:-
“(2) 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
(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.”
16. In my view, the appellants/applicants must show that:-
1. They will suffer substantial loss unless the orders prayed for are issued;
2. The application was filed without delay; and
3. That security for the due performance of the decree has been granted/offered.
17. These requirements are conjunctive and not disjunctive. They must all be present for an order, staying execution of the decree or order of the Court, to issue.
18. I will now look at each requirement and determine if they have been satisfied.
Will the Appellants/Applicants Suffer Substantial Loss
19. What amounts to substantial loss was discussed in the case of James Wangalwa & another vs Agnes Naliaka Cheseto [2012]eKLR. The Court stated that:-
“11.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 V 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.”
20. The appellants/applicants aver that if the stay is not granted, the house they are dwelling will be sold, and such a sale would result in a substantial loss to them. My reading of the replying affidavit is that the fear is not unfounded. There is a clear and present risk that the subject estate may be sold. In my view, the sale will cause substantial loss to the appellants/applicants.
Was the Application filed without Undue Delay?
21. The impugned decision was made on 25th January 2024. This application was filed on 11th March 2024. What amounts to undue delay is dependent on the circumstances of each matter. In my view, the period taken by the appellants/applicants was not undue. In the circumstances, I find and hold that the second test has been satisfied.
Provision of security
22. As this is a family matter, the Court is of the opinion that the provision of security is inapplicable.
Orders of the Court
23. I find and hold that the application has merit. Consequently, I stay the execution of the ruling of the Hon Kadhi delivered on 25th January 2024. I also order that the estate accounts be preserved until the appeal is heard and determined.
24. As this is a family matter, each party shall bear its costs.
25. Orders accordingly.
DATED and SIGNED at Mombasa this 12th day of August 2024. Delivered virtually via Microsoft TEAMS.
Gregory Mutai
JUDGE