Edward Njoroge Mwangi v Joseph Gatweci Mwangi & 5 others

1st Appellant’s/Applicants’ Case 3. The applicant states that the respondent filed a petition in Thika CM Court being Succession Cause No. 471 of 2010 without informing the other beneficiaries. The applicant further states that the grant was confirmed in favour of the respondent having used forged signatures to the consent he filed in court purporting that all the beneficiaries had consented to the mode of distribution. The beneficiaries upon discovery of the said fraud filed Summons for revocation of grant dated 27th July 2018 and 4th April 2019. However, the court dismissed the summons for their but the same were dismissed as their advocate failed to follow up. 4. The applicant avers that the said advocate later filed an application dated 2nd February 2024 to reinstate the said summons for revocation and the said summons was dismissed on 17th July 2024. Further, the respondent filed an additional application dated 20th February 2024 seeking to evict the applicant which application was allowed. Being dissatisfied with the ruling, the applicant states that he filed the instant appeal. 5. The applicant is apprehensive that the respondent might proceed to execute the said ruling which will render the appeal nugatory. The applicant avers that the appeal has high chances of success and should be given an opportunity to be heard. The Respondent’s Case 6. The respondent states that the appellants were aware of the succession proceedings and the subsequent meetings at the chief’s office and at no time did they raise any objection to the proposed mode of distribution. Thus, they cannot claim to be unaware of the filing of the course and the subsequent proceedings. 7. The respondent avers that the appellant filed summons for revocation or annulment of grant dated 4/4/2019 seeking to revoke the grant confirmed on 7/11/2012 to be revoked on the grounds that the proceedings were defective in substance and the grant was obtained by fraud. On 10/8/2021, the matter was placed before Hon. Wanjala (SRM) where there was no appearance by the appellants and the court instructed them to be served and slated the matter for hearing on 31/8/2021. On 31/8/2021, the respondent states that the court directed that the parties amend their statements and the matter to proceed by viva voce evidence. The matter was slated for mention on 14/9/2021 to confirm compliance and the appellants’ counsel was instructed to serve their application dated 25/7/2018 which sought to reinstate their application which had been dismissed. 8. The respondent avers that on 14/9/2021, the appellants’ advocate did not attend court and neither had he served them with their application and the court directed that the application dated 25/7/2018 to be served and a date to be fixed within 30 days failure to which the application stood dismissed. The matter came for hearing on 14/12/2019 and the appellants did not appear but their brief was held by another counsel who told the court that the advocate was indisposed. The respondent states that he had not yet been served with the said application dated 25/7/2018 and the court dismissed the matter and slated the matter for mention on 25/1/2022. 9. On 25/1/2022, the respondent states that the appellants had not filed their application for reinstatement of the suit and neither were they present in court and the court dismissed the matter and closed the file. 10. The respondent avers that on 12/6/2024, the appellants filed an application dated 2/02/2024 seeking to reinstate the application dated 25/7/2018. Additionally, the respondent avers that he filed summons https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19789/eng@2025-02-20 2

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dated 20/2/2024 where he sought an eviction order against the 1st applicant from LR. Loc. 1/ Chomo/856 and that the OCS Kirwara police station do provide security during the eviction. The trial court allowed the respondent’s application and dismissed the appellants’ application dated 2/02/2024. 11. The respondent states that the appellants have been filing an influx and avalanche of applications praying for the same thing yet they never attend court for their applications contrary to the principle that litigation should come to an end and that courts time should not be wasted with vexatious matters. 12. The respondent avers that the estate of the deceased has already been subdivided as per the wishes of the deceased and the appellants are in possession of their title deeds. Thus there is no further land to be sub divided and no one has been deprived of their beneficial share of the estate of the deceased. The respondent further states that the 1st applicant is in possession of his title deed to his portion of his estate but he has adamantly refused to vacate from someone else’s land even after constant reminders to vacate. 13. Parties disposed of the application by way of written submissions. The respondent stated that he wished not to file any written submissions. The Applicants Submissions 14. The applicants rely on the case of Trade Circles Limited v Family Bank Limited & Another [2021] eKLR and submit that the mistakes of the former counsel regarding failure to serve and prosecute the dismissed applications should not be visited upon innocent litigants who are not aware of court processes. 15. The applicants further rely on Order 42 Rule 6 of the Civil Procedure Rules and the case of Butt v Rent Restriction Tribunal [1979] and submit that they stand to suffer substantial loss as they shall be evicted from the estate of their late father rendering the beneficiaries who were not given any share of the estate homeless. 16. The applicants submit that the ruling in the trial court was rendered on 17th July 2024 and they filed the instant application on 9th August 2024 which is only 20 days after the adverse orders were given. The applicants further submit that they are willing to comply with the conditions that the court will give in a bid to have the appeal concluded expeditiously. 17. The applicants rely on the case of Martha Wangari Karua v IEBC Nyeri Civil Appeal No. 1 of 2017 and submit that the rules of natural justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing. 18. The main issue for determination is whether the applicants have satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. The Law Whether the applicants have satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 19. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:“ 1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19789/eng@2025-02-20 3

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from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside. 2. 20. 21. No order for stay of execution shall be made under sub rule 1 unless:a. The Court is satisfied that substantial loss may result to the 1st 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." Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that: 1. Substantial loss may result to him/her unless the order is made; 2. That the application has been made without unreasonable delay; and 3. The applicant has offered such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. Substantial loss was clearly explained in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR:“ 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 affairs that will irreparably affect 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." 22. The applicants state that they stand to suffer substantial loss as eviction orders have been made against them and if they are evicted they stand to be rendered homeless. 23. Upon perusal of the record, the grant herein was issued on 22nd February 2011 and confirmed on 7th November 2012. The estate was distributed as follows:a. Stephen Mwaniki Mwangi – 2 acres b. Edward Njoroge Mwangi – 1.4 acres c. Jane Wairimu Mwangi – 1.4 acres d. Joseph Gatweci Mwangi – 1.4 acres https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19789/eng@2025-02-20 4

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e. Paul Maina Mwangi- 1.4 acres. 24. The 1st applicant thereafter filed two applications for revocation of grant dated 25/7/2018 and 4/4/2019 however he was reluctant to prosecute his applications which led to the trial court giving compliance orders for 30 days on 14/9/2021 failure to which, both applications stood dismissed. On 14/12/2021, counsel for the 1st applicant sought an adjournment but counsel for the respondent informed the court that pursuant to the directions issued on 14/9/2021, the two applications dated 4/4/2019 and 25/7/2018 stood dismissed for failure by the 1st applicant to comply. The 1st applicant further failed to file an application to reinstate his two dismissed applications despite the trial court giving him a chance to do so. Thus, it is evident that the 1st applicant is the author of his own misfortune for failing to prosecute his applications which were very crucial to his interest if he was aggrieved by the distribution of the estate. 25. 1st applicant as well as all rightful beneficiaries were given their shares of the deceased’s estate and thus none of them shall be rendered destitute and homeless. That notwithstanding, no other beneficiary has made a complaint that they were left out of the succession proceedings or that they were disinherited. 26. It is imperative to note that the ruling appealed against was one for execution of the grant but not for revocation. The outcome of the appeal, therefore, may not change the status quo. 27. Having considered the above issues, I am of the considered view that the applicant has not demonstrated that he will suffer substantial loss in the event that stay pending appeal is not granted. Has the application has been made without unreasonable delay 28. The ruling was delivered on 17th July 2024 and the applicants filed the instant application on 9th August 2024. Thus, the application has been filed timeously. Security of costs 29. The purpose of security was explained in the case of Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR the court stated:“ The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose." 30. Evidently, the issue of security is discretionary and it is upon the court to determine the same. The applicant has not offered any form of security for the due performance of the decree. 31. Additionally, the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR the court stated:“ The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19789/eng@2025-02-20 5

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that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.” 32. The court in granting stay has to carry out a balancing act between the rights of the two parties. The question then begs as to whether there is just cause for depriving the respondent his right of enjoying his judgment. I have further perused the grounds of appeal and without going into the merits of the appeal noted that the appeal raise arguable points but it does not have overwhelming chances of success. 33. Consequently, I am of the view that the applicants have not met the threshold of granting stay of execution pending appeal. 34. Accordingly, I find that the application dated 9th August 2024 lacks merit and is hereby dismissed with costs. 35. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 20TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19789/eng@2025-02-20 6

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