Chombo & 4 others v Estate of Kassim Hamisi Nyuni

4. Costs of this application be provided for. 2. The application is supported by the adavit of Bakari Nasoro Chombo the 1st Applicant herein. It is averred that the Plaintis/Applicants moved the ELC court to address their rights over Kwale/ Msambweni/2164 the suit property. That judgement over the same was rendered on 7/3/2024 and being dissatised with the judgement have preferred an appeal before the Court of Appeal designated as Civil Application No E049 OF 2024. Further that the Defendant is deceased and cannot sanction the subdivision of the suit property. 3. That despite the pending appeal and the death of the Defendant, the department of survey had issued a notice of the intended sub division set to be conducted on 6/8/2024. That it is unclear who the owners of the land are save for the Defendant and the Plaintis who have an interest in the suit property. The Plaintis are apprehensive that third parties might be having an interest in taking advantage of the judgement to the Plaintis detriment. The Plaintis now seek for orders of stay of execution of the judgement of 7/3/2024 pending the hearing and determination of the appeal. Response 4. In opposing the application, the administrator of the estate of the late Kassim Hamisi Nyuni one Rukia Hamisi Nyuni led a replying adavit sworn on 10/9/2024. It is averred that the Plaintis have never served the alleged application in the Court of Appeal upon the Defendant. The deponent admits that indeed the Defendant passed away but she is the administrator to his estate. That the purported sub division and survey is being carried out according to the judgement of the court. At paragraph 7 it is averred that there is no prejudice to be suered even if the appeal succeeds as the suit property will revert back to its owner. The respondent seeks that the application is dismissed as the same is not merited. Further Adavit 5. In response to the replying adavit, the Plaintis led a further adavit sworn by Bakari Nasoro Chombo. It is stated that the Respondents were served with the Court of Appeal application and directions given by the court. An adavit of service is attached to the same. That after being served with the appeal papers the survey which had been scheduled for May 2024 was rescheduled to August 2024. That it is only fair that the court stays execution of judgment of 7/3/2024. That in the event the stay of execution is not granted the proceedings of the appeal will be rendered nugatory. Submissions 6. By consent of parties, the application was dispensed by way of written submissions. The Applicant’s submissions are dated 4/10/2024 and the Defendant’s 14/10/2024. Dictum 7. I have considered the application, the response and the submissions led by the parties to buttress their assertions. The main issue that emerges for determination is whether the Applicants have met the threshold for grant of orders of stay pending appeal. The purpose and objective of the order for stay of execution is to preserve the substratum of the appeal in order to ensure that the appeal is not defeated. In the case of Consolidated Marine. vs. Nampijja & Another, Civil App.No.93 of 1989 (Nairobi), the Court held that: The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13740/eng@2024-12-10 2

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8. The Court of Appeal in RWW vs. EKW (2019) eKLR addressed itself on this as hereunder: "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 weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suers prejudice that cannot be compensated by an award of costs. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.” 9. 10. The Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 guided on how this discretion should be exercised thus;1. “The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge's discretion. 3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings. 4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal. 5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse." The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides: No order for stay of execution shall be made under subrule (1) unless— 11. (a) the court is satised 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. From the above provisions of statute, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13740/eng@2024-12-10 3

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(c) 12. that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. I will proceed rst to interrogate if the applicant really will suer substantial loss if stay is not granted. What amounts to substantial loss was expressed by the Court of Appeal in the case of Mukuma vs Abuoga (1988) KLR 645 where their Lordships stated that; "Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 13. Substantial loss was further explained in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, thus: "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 aairs that will irreparably aect or negate the very essential core of the applicant as the successful party in the appeal ... 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.” 14. Applying the foregoing guidance to the facts of this case, the Plaintis in the suit refer to themselves as the heirs of the late Nyuni Kunyapa vide a Succession Cause at the Kadhis Court in Kwale. They dispute the Defendant’s beneciary interest and stated that the Defendant was not entitled to inherit anything from the estate of the deceased. The Defendant’s occupation of the suit property was thus termed wrongful and unlawful. The court however found that the Plaintis failed to prove their case on a balance of probability and consequently the orders issued in ELC Misc 5 of 2021 were to be perfected and to wit the sub division of the suit property was to be among both the Plaintis and the Defendant herein who are beneciaries to the estate of the deceased Nyuni Kunyapa. The Plainti obviously not satised with these orders has preferred an appeal against the same. I however note that what was led at the Court of Appeal was an application whose contents have not been made known to court. As it stands, there is no appeal as alluded to by the Plaintis. 15. I will not dwell much on my judgement. However in the event that the Court of Appeal overturns the ndings of this court then clearly the suit property will revert to the late Nyuni Kunyapa. In the impugned judgement, I made a nding that the parties herein were both in occupation of the suit property though the Plaintis were keen on the Defendant being evicted from the said parcel. Does the Plainti stand to suer any loss in the event that the orders sought are not granted? Am not in doubt that they will not. 16. Moreover the Plainti’s states that the Defendant is deceased which is not a disputed fact and the expected sub division cannot take place with third parties. However, the Respondent Rukia Hamisi Nyuni has produced before court Letters of Administration ad litem to the estate of the deceased Kassim Hamisi Nyuni. In the event the subdivision proceeds then the same will denitely not be with third parties and strangers but the beneciaries of the estate of the deceased Kassim Hamisi Nyuni together with the Plaintis. In my view the aspect of substantial loss has not been successfully demonstrated by the Plaintis. I draw further guidance from the Court of Appeal in Kenya Shell https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13740/eng@2024-12-10 4

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Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) KAR 1018 which pronounced itself thus: "It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 17. On security for costs, the applicant has not made any proposal as to what he intends to deposit as security for costs. However having found that the requirement to demonstrate substantial loss will be suered should the order not be granted has not been met, I see no need to dwelve into this issue. I’m persuaded by the dictum in the case of Sammy Some Kosgei V Grace Jelel Boit [2013] eKLR where the court emphasised that if an applicant cannot demonstrate substantial loss, then the application ought to automatically fail and there would be no point in considering the question of security since the question of substantial is the epicenter in an application for stay of execution pending appeal. 18. The above argument will also apply to whether the application has been made without delay. 19. Having made a nding that substantial loss has not been proved and considering the circumstances of this case, I nd the application lacking in merit. The Plainti’s application dated 3/8/2024 is hereby dismissed. The Respondent will have the costs of the application. 20. Orders accordingly. RULING DATED SIGNED AND DELIVERED THIS 10TH DAY OF DECEMBER, 2024 ……………………… AE DENA JUDGE Ms. Juma Holding Brief for Khatib for the Defendant Mr. Yose for Plainti/applicant Daniel Disii - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13740/eng@2024-12-10 5

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