Githuku Nancy & 1 other v Lilian Mwikali Mbaluka (Suing as Administrator of the estate of the late Eric Ndambuki (deceased) & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. APPLICATION NO. 72 OF 2017 GITHUKU NANCY...........................................................1 ST APPELLANT/APPLICANT DANIEL KINYUA GAKUU.............................................2ND APPELANT/APPLICANT VERSUS LILIAN MWIKALI MBALUKA (Suing as Administrator of the estate of the late Eric Ndambuki (deceased).....................................................................1 st RESPONDENT KENNEDY JAMES NDAMBUKI (Suing as the administrator of the estate of the late Eric Ndambuki) deceased)....................................................................2nd RESPONDENT RULING This is an application by way of Notice of Motion dated 20 th, November 2019 seeking the substantive order that there be a stay of execution of the judgment and or decree of the lower court cited therein. The applicant had earlier by an application dated 16 th February, 2017 sought a stay of execution of the same judgment of the lower court. In a ruling delivered on 17th May,2018 the application was allowed on condition that the applicants paid the respondents a sum of Kshs.2,000,000/= and deposit the balance of the decretal sum in an interest earning account in the joint names of the advocates on record for the parties within 30 days from the date of that ruling. Compliance thereof would have been by 18th June, 2018. It has now transpired that there was no compliance with the conditions set in that ruling for reasons that have been stated in the present application. In the present application, the applicants also seek extension of time within which to comply with the conditions given on 17 th May,2018 by 21 days to enable them deposit Kshs. 1,000,000/= in court as opposed to a joint earning account. Alongside the said prayer, the applicants sought the variation of the order. I have read the supporting affidavit and the replying affidavit. I have also considered the cited authorities. The applicants in both the earlier application dated 16th February, 2017 and the peent application cited Order 42 Rule 6 of the Civil Procedure Rules relating to stay of execution. The order made on 17th May, 2018 was specific and unequivocal. The decretal sum, going by the record is Kshs. 5,014,212.80. It is not clear why the applicants have stated the balance was Ksh. 1,000,000/=. The cheques forwarded to counsel for the respondent amounting to Kshs. 2,000,000/= are dated 11 th October, 2018 almost five months from the date the ruling was delivered. The present application was filed over one year from the date of expected compliance. The delay in complying with the court order, and filing of the application has not been sufficiently explained to the satisfaction of the court. The applications have also, on their own motion, purported to extend the court order in relation to the balance of the decretal sum to be deposited.

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