GEOFFREY MURIITHI M’ITUMBIRI v CATHERINE KIENDE MBAYA

Catherine denied allowing Georey to deal with the deceased’s estate on her behalf, and termed any documents in that regard as forgeries. 4. In response to the application Georey contended that Plot No.3B Makutano was jointly owned by him and the deceased, and consequently, that the deceased’s interest was extinguished through his death and the property vested in Georey. He further stated that Plot No. 3B Makutano was no longer available as it was transferred to a company; and that Catherine and her sister were aware of the succession matter, and had given him the go ahead to pursue the matter as the deceased had already divided to each child a portion of the estate during his lifetime. 5. Upon hearing the application, the learned Judge delivered a judgment on 18th April 2016 in which he found that Catherine was not notied of the succession proceedings nor did she give her consent for Georey to obtain the grant. The learned Judge concluded that the grant issued to Georey was obtained irregularly through fraud and contrary to the law. He therefore revoked the grant, set aside the conrmation, and issued a fresh grant in the joint names of Georey and Catherine; and directed Georey to le an inventory of the deceased’s properties as well as an application for conrmation of the joint grant. 6. Subsequently, Catherine led an application for conrmation of the joint grant contending that Georey had refused to cooperate. She proposed her own mode of distribution of the deceased’s estate among the three siblings. The application came before the learned Judge who conrmed the grant on 23rd November 2016 and approved the distribution proposed by Catherine. 7. Georey being aggrieved led an application dated 20th December 2016 in the High Court, primarily seeking to set aside the orders given on 23rd November 2016 on the grounds that the orders were made in his absence and that of his advocate as there was a communication breakdown between him and his advocate, and he was not aware of the application dated 20th June 2016 nor the hearing date of 23rd November 2016. Georey stated that the advocate was served with the application for conrmation of grant but it was misplaced and not diarized. 8. Catherine opposed the application maintaining that Georey was dishonest, as he had failed to adhere to previous court orders, and this forced her to le the application for conrmation of the grant. She termed the applicant’s motion as an abuse of the court process. 9. Having heard the application, the learned Judge delivered a ruling on 21st May 2018 in which he dismissed the applicant’s motion dated 20th June 2016 stating that the court’s main concernis to do justice to the parties, and the court could not exercise its discretion in favour of a party who had deliberately attempted to delay the course of justice. The learned Judge also found that Georey and his advocate were careless and negligent, and had given no good reason to justify the setting aside of the orders. 10. By a notice of appeal dated 28th May 2018 Georey moved to this Court. On 1st September 2021, Georey led a Notice of Motion seeking orders to stay execution of the ruling of the High Court said to be made on 23rd May 2018 and all consequential orders, and a further order restraining the respondent and her agents from alienating, subdividing and or disposing of Ntima/Igoki/2531 pending the hearing and determination of the intended appeal. This is the application now before us. 11. The grounds posited by Georey in the application are: that an application for stay at the High Court was denied; that the grant was conrmed at an ex parte hearing; that Catherine has obtained orders for the Deputy Registrar to sign transfer documents regarding parcel Ntima/Igoki/8395 which is the subject of the appeal with the intention of Catherine disposing of the same; and that the grant was unprocedurally conrmed ex parte. Georey disputed service of the application for conrmation of https://new.kenyalaw.org/akn/ke/judgment/keca/2022/754/eng@2022-06-24 2

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grant and pointed to anomalies in the dates reected in the process server’s adavit. For instance, service is said to have been done on 9th January 2016, while the application is dated 20th June 2016. That the delay in making the application is not unreasonable as Georey learnt of the dismissal of his application in the High Court on 13th August, 2021; and that Catherine will not be prejudiced if the orders sought are granted. 12. Georey led submissions dated 17th September 2021, in support of the motion, in which he urged the Court to allow his application. He argued that if the suit property is subdivided and disposed of, his appeal will be rendered nugatory. 13. Catherine led a replying adavit sworn on 20th September, 2021 in which she opposed the motion and termed it a waste of the court’s valuable time. She argued that Georey had already received property from their father and that the suit property had already been subdivided. Catherine submitted that service of the summons for conrmation of the grant was properly done, and was not challenged in the earlier application that sought to set aside the conrmed grant. She accused Georey of trying to mislead the Court and urged that he was not deserving of the orders sought. She argued that litigation must come to an end, and therefore the applicant’s motion should be dismissed. 14. We have carefully considered Georey’s motion, the contending submissions led by the parties, and the oral highlights. The issue is whether under Rule 5(2)(b) of the Court of Appeal Rules Georey has met the threshold for grant of the orders of stay of execution and temporary injunction that he seeks. 15. In Attorney General vs Okiya Omtatah Okoiti & Another [2019] eKLR, this Court (Okwengu, Sichale & J. Mohammed JJ.A), reiterated the threshold for grant of stay of execution under Rule 5(2)(b) of the Court Rules as follows: “ The principles for our consideration in the exercise of our unfettered discretion under Rule 5(2)(b) to grant an order of stay are now well settled. Firstly, an applicant has to satisfy that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but suce to state that it is an appeal that is not frivolous and/or idle. Secondly, an applicant has to demonstrate that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory. ... Further, in Gitirau Peter Munya vs. Dickson Mwenda Kithiji & 2 Others [2014] eKLR (a decision cited by the applicant), the Supreme Court of Kenya added a third consideration, this being whether it is in the public interest that the order of stay be granted.” 16. In Stanley Kangethe Kinyanjui v Tony Ketter & Others [2103] eKLR, the Court (W. Karanja, Ouko & Kiage JJ. A) explained that: “ vii In considering whether the appeal will be rendered nugatory the Court must bear in mind that each case must depend on its own facts and peculiar circumstances. viii. An applicant must satisfy the Court on both the twin principles. viii. On whether the appeal is arguable, it is sucient if a single bona de arguable ground of appeal is raised. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/754/eng@2022-06-24 3

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xi. In considering an application brought under Rule 5(2) (b), the Court must not make denitive or nal ndings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. xi. The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means triing. xi. Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 17. With the above principles in mind, we note that Georey contends that he has an arguable appeal against the Ruling intended to be appealed against. As per the notice of appeal led by Georey, the impugned Ruling is dated 21st May 2018. This is the Ruling in which the learned Judge dismissed Georey’s motion dated 20th December 2016. However, as per the motion dated 1st September 2021 (subject of this ruling) at prayer 3, Georey seeks to stay the orders made on 23rd May 2018, while in prayer 4 Georey seeks to stay orders made on 23rd November 2018. There is no notice of appeal exhibited either against the order of 23rd May 2018 or 23rd November 2018. Our perusal of the record reveals no orders made on 23rd May 2018 or 23rd November 2018 but there was an order made on 23rd November 2016 in which the learned Judge conrmed the joint grant, but this is not the order sought to be stayed nor is there a notice of appeal against this order. 18. We nd that Georey has not properly invoked the jurisdiction of this Court as there is no appeal upon which the orders he seeks can be anchored. Secondly, even if we were to accept that the orders sought are anchored on the intended appeal against the ruling of 21st May 2018, the learned Judge declined in that ruling to exercise his discretion to set aside the ex parte orders, and Georey has not demonstrated how the learned Judge erred in exercising his discretion so as to render his intended appeal arguable. 19. Moreover, Georey does not deny that he did not comply with the court orders of 18th April 2016 to le accounts and an inventory of the suit property or liaise with the interested party to le a joint application for conrmation of the grant. This prompted Catherine to le an application for conrmation of the grant on her own. Therefore, Georey is before the Court with unclean hands, having failed to obey a court order. He cannot blame the court for taking action at the instance of Catherine. We are not therefore persuaded that Georey has an arguable appeal. 20. With regard to the nugatory aspect, Georey states that if the orders are not granted, the deceased property known as Ntima/ Igoki/2531 will be sub-divided and the appeal will be rendered nugatory. We are not convinced that the applicant’s appeal will be rendered nugatory or that Georey stands to suer any prejudice, as he was allocated portions of the deceased’s property in the mode of distribution adopted by the court. It is not clear what hardship he will suer or how he will be prejudiced if Ntima/ Igoki/2531 is divided in the manner adopted by the court. The proposal of the applicant that the dispute be subjected to court annexed mediation is coming very late in the day and appears to be a gimmick to further delay the distribution of the estate. 21. For the above reasons, we nd that Georey has failed to meet the threshold for granting orders of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. Accordingly, we dismiss Georey’s motion dated 1st September 2021. The dispute being a family dispute, we do not nd it appropriate to award costs. Each party shall therefore meet their own costs. Those shall be the orders of this Court. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/754/eng@2022-06-24 4

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DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE, 2022. HANNAH OKWENGU ................................. JUDGE OF APPEAL F. SICHALE ................................. JUDGE OF APPEAL A. MBOGHOLI MSAGHA ................................. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/754/eng@2022-06-24 5

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