Luciano Kiruki Mugambi & 2 others v Sesary Gatobu M’ Mugambi

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU SUCCESSION CAUSE NO. 22 OF 1995 IN THE MATTER OF THE ESTATE OF M’ MUGAMBI M’ RIMBERIA (DECEASED) LUCIANO KIRUKI MUGAMBI................1ST APPLICANT DANIEL KIGORA MUGAMBI.................2ND APPLICANT ZACHARY MUTIORA MUGAMBI..........3RD APPLICANT VERSUS SESARY GATOBU M’ MUGAMBI...............RESPONDENT RULING [1] The Summons dated 25th January 2019 and brought pursuant to Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules seek stay of execution of the judgment delivered on 17 th December 2018, pending the hearing and determination of an intended appeal. [2] The application is premised on the grounds inter alia that judgment on distribution of the estate was delivered on 17 th December 2018 and that the Applicants were dissatisfied/aggrieved with the aforesaid judgment and had filed a notice of appeal against it. The Applicants further contended that they would suffer irreparable loss unless execution of the said judgment was stayed. [3] The application was opposed via a replying affidavit filed in court on 23 rd April 2019 by the respondent where he deposed inter alia that the application was not meritorious as it sought to stay a judgment given in a cause which commenced more than 2 decades ago. In any event, in the impugned judgment, the court observed that the respondent had been in exclusive occupation for more that 6 decades and was gifted to the respondent by the deceased intervivos and that the applicants had not demonstrated how they would suffer irreparably should the land be registered in his name. The Respondent further urged the court to order the Applicants to deposit Kshs 200,000 as security for costs should it be inclined to allow the application. ANALYSIS AND DETERMINATION [4] The Applicants are essentially seeking stay of execution of the judgment delivered on 17 th December 2018 in which the court inter alia held that ABOTHUGUCHI/U- KAONGO/1050 was a gift inter vivos given to the respondent. Stay of execution pending is not given as a matter of right or simply because one has filed an appeal. It is granted at the discretion of court after being satisfied that there is a sufficient reason to so order. This is because the court has to balance two competing rights; the appellant’s right of appeal which includes right for appeal not to be rendered nugatory; and the respondent’s right to immediate enjoyment of his judgment. None is the lesser. Therefore, the court must consider all the circumstances of the case as it is guided by the traditional prerequisites in Order 42 rule 6 of the Civil Procedure Rules namely; whether substantial loss will occur if the order is not granted; whether the application has been brought without unreasonable delay; and provision of security for performance of the decree as the case maybe. These principles were restated by the Court of Appeal in the case of CARTER & SONS LTD. V. DEPOSIT PROTECTION FUND BOARD & TWO OTHERS – Civil Appeal No. 291 of 1997, at Page 4 as follows: “ . . . the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security, and the application must, of course, be made without unreasonable delay.” [5] In this case, the court made a finding that land parcel number ABOTHUGUCHI/U-KAONGO/1050 was a gift inter vivos made to the

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