Mwm v Hmm

dispute that the properties are fetching rent which the respondent is utilizing alone. These properties are valuable. The Court of Appeal will be called upon to review the judgment of this court and determine if the properties constitute matrimonial property and, if so, what each party should get from them. If the court agrees with the applicant and allows their sale, and the Court of Appeal ultimately finds for the respondent then substantial loss will have been occasioned. Further, the averment by the respondent that the applicant will not be in a position to refund the proceeds of sale was not at all challenged. In the circumstances of this case, I allow the respondent's application for stay pending the hearing and determination of the appeal on condition that each property shall have an order registered against it prohibiting its sale, lease or charge. Secondly before the appeal is heard and determined, Damas Services Auctioneers shall from 1 st July 2019 be collecting rent from the tenants and sharing it equally to the parties. This will be less management fees and other outgoings.” 3. 4. Following the above orders dated 22nd May 2019 and delivered on 30th May 2019, the respondent did not take any further action to prosecute his appeal. Consequently, the applicant filed an application dated 19th October 2022 seeking vacation of Stay Orders issued on 30th May 2019. Subsequently the applicant has filed this instant application dated 19th December 2023 seeking the following orders; 1. Spent 2. That the application dated 19th October 2022 be set down for hearing at court’s earliest convenience. 3. That pending the hearing and determination of this Application, the Orders allowing Damas services auctioneers to collect rent for the matrimonial properties be lifted. 4. That the Property Boutique be appointed in the place of Damas Services Auctioneers. 5. That the costs of this Application be provided for. The Application is premised on the following grounds; a. That the Applicant herein filed an Application dated 19th October 2022 seeking for vacation of Stay Orders issued on 30th May 2019. b. That the Court while granting Stay Orders, directed as follows:i. Stay pending the hearing and determination of the Appeal was allowed on condition that each property shall have an order registered against the sale, lease or charge of the properties ii. Damas Services Auctioneers shall collect rent from the tenants and share it equally to the parties c. That the said Application is yet to be finalized. d. That in the meantime, one of the properties which the Court determined was matrimonial Property and was to be sold, has been run down and is in such bad shape noting that part of the building recently collapsed. e. That the applicant fears for the lives of tenants residing in the said property and has even sought for eviction notices to be issued so as to avoid bringing harm to the tenants https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17644/eng@2025-10-03 2

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f. That further, she fears that if this matter is not determined soon, the said property will have lost so much value and form, making it harder to dispose off the same when the time comes. g. That it is of utmost importance that the Application is heard and determined so as to finally bring this matter to a close and salvage that which is left. 5. The Application is supported by an affidavit sworn by the applicant on 19th December 2023 in which she reiterated the grounds of the application. 6. The respondent HMM opposed the application through a replying affidavit sworn on 13th February 2024. The respondent deponed that Damas Service Auctioneers who the applicant is seeking to be removed were appointed by the applicant herself. The respondent deponed the applicant is not willing to spend her money in renovation and the apartment yields rental income of Kshs.10,000/= while renovation work would cost is Kshs.400,000/= 7. This court issued directions that the application be canvassed by way of written submission. From court record the applicant opted not to file written submissions and the respondent filed written submissions dated 24th July 2025. 8. The respondent’s advocate briefly submitted Damas Service Auctioneers was appointed or proposed to act as an agent in the management of the properties in this suit by MWM the Applicant. 9. It was submitted the building at Kayole has had challenges as it has not been maintained for a long time and the Applicant does not want to use her money to improve it by painting and fixing metallic doors for security purposes and tenants have been moving out due to this. It was further submitted that the building is not complete and the landing from the rooftop to Third Floor collapsed but it has now been satisfactory repaired by M/s Damas Service Auctioneers. The respondent submitted that the Applicant is aware that complete renovation to the building would require about Kshs. 400,000/ = and the rent collected per month is about Kshs.10,000/= per month. 10. From the Application, rival affidavits and written submissions the main issues for determination are; 11. 1. Whether the Application dated 19th October 2022 should be set down hearing. 2. Whether this Court should lift the orders allowing Damas Services Auctioneers to collect rent for matrimonial properties and appoint property Boutique in place of Damas Services Auctioneers. The applicant is seeking orders that her application dated 19th October 2022 be set down for hearing. From the record I note that a judgment was delivered in this matter on 30th October,2017 in which the court found the suit properties to be matrimonial properties and ordered that the properties to be sold and proceeds shared equally between the parties. The respondent being aggrieved by the orders in the judgement, he on the 6th November 2017 filed an application dated 5th December 2018 for stay of execution pending appeal. The respondent also filed a Notice of appeal dated 31st October 2017. Upon hearing the application, the court delivered a ruling on 30th May 2019 allowing stay of execution pending appeal. Thereafter the respondent did not take further action to prosecute his appeal for a period of 5 years. Consequently, the applicant filed an application dated 19th October 2022 seeking vacation of Stay Orders issued on 30th May 2019 which has been pending before court since 2019. The applicant has now filed this instant application dated 19th December 2023 seeking orders that her application dated 19th October 2022 be set down for hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17644/eng@2025-10-03 3

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12. The Court notes that the Respondent lodged Notice of Appeal dated 30th October 2017 but has failed to take any further steps to prosecute his appeal within the time prescribed by law and/or within a reasonable time. The Respondent has not demonstrated any interest in pursuing the appeal for the past six years. 13. The delay in prosecuting the appeal is prejudicial to the Applicant, who is entitled to fruits of judgement delivered on 30th October,2017 therefore it is only fair and just that Application dated 19th October 2022 be heard and finalized without undue delay. In the interests of justice and to prevent further abuse of the court process, it is proper that the Applicant’s Application dated 19th October 2020 be set down for hearing notwithstanding the pendency of the Respondent’s unprosecuted appeal. 14. In conclusion I issue the following orders; 1. That applicant’s application dated 19th October 2022 be and is hereby set down for hearing on……………………..at……………………..or on such other date as court may direct. 2. The respondent having failed to pursue his appeal shall not delay the hearing of the applicant’s application. 3. Prayer 3 & 4 declined. Status quo to be maintained pending hearing of the application dated 19th October 2022. 4. No Each party to bear his own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2025. ....................................................... S. N. RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17644/eng@2025-10-03 4

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