Aliya Zahran v Khadija Khamis Shafi,Kulthum Khamis Shafi, Fadhila Zahran Mohamed & Shaffa Khamis Shaffi [2019] KEHC 11124 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

HC NO. 26 OF 2016 (OS)

IN THE MATTER OF:THE TRUSTEE ACT

IN THE MATTER OF:THE WAKF OF MWANA MISHI BINTI AZIZ BIN JUMA

IN THE MATTER OF:APPOINTMENT OF NEW TRUSTEES

BETWEEN

ALIYA ZAHRAN.............................................................APPLICANT

VERSUS

KHADIJA KHAMIS SHAFI.......................................RESPONDENT

KULTHUM KHAMIS SHAFI.....................................RESPONDENT

FADHILA ZAHRAN MOHAMED.............................RESPONDENT

SHAFFA KHAMIS SHAFFI ......................................RESPONDENT

RULING

1. Aliya Zahran, the Applicant by her Application dated 26. 7.17 seeks orders that the execution/enforcement of the Ruling and Order made on 30. 6.17 be stayed pending the hearing and determination of the intended appeal. The Applicant also seeks costs.

2. The Applicant states she is the only surviving beneficiary of the Wakf of Mwana Mishi Binti Aziz Bin Juma (the Wakf). By the orders made on 30. 6.17, the Court appointed Khadija Khamis Shafi and Fadhila Zahran Mohamed,the 1st and 3rd Respondents respectively as trustees of the Wakf yet they are not beneficiaries thereof. According to the Applicant, the effect of the order violates Article 40 of the Constitution by irregularly and unlawfully making the Respondents beneficiaries of the Wakf. The Applicant avers that her intended appeal is arguable and if stay is not granted, the same will be rendered nugatory. The Applicant further states that she is apprehensive that execution of the order will irreparably affect and negate her rights as a successful party in the appeal in that the 1st and 3rd Respondents are not beneficiaries of the Wakf and cannot in law be appointed as trustees. It will be extremely difficult or impossible for her to obtain compensation from numerous 3rd parties who will claim under the Respondents or enforce a decree of vacant possession against numerous 3rd party beneficiaries in the very likely event that the appeal succeeds because 3rd paties will claim to be beneficiaries of the Respondents through a Court order. She further asserts that the Application was made without delay.

3. The Respondents have opposed the Application by way of a replying affidavit sworn on their behalf by the 1st Respondent on 19. 3.18. It is averred that the Application has been overtaken by events and execution of the orders in the Ruling has taken place. A copy of title to support this assertion was exhibited. It is further argued that this Court has no jurisdiction to order stay of execution pending appeal when there is no appeal filed as the annexed memorandum of appeal does not conform to the statutory form F as stipulated by Rule 86(3) of the Court of Appeal Rules, 2010 hence rendering the same incurably defective. The Applicant has failed to demonstrate that the intended Appeal is arguable and has high chances of success and that it would be rendered nugatory if stay is not granted. To the Respondents, the Ruling can be easily be reversed on Appeal. It is further argued that there is no positive and enforceable order which can be the subject matter of the said Application for stay, as the Order sought to be stayed merely seeks to preserve the Wakf property, which does not belong to any of the parties personally. The Respondents prayed that the Application be dismissed with costs.

4. In the orders of 30. 6.17, the Court did appoint the 1st and 3rd Respondents as trustees of the Wakf in addition to the Applicant. The Respondents have exhibited a copy of the Title Number Mombasa/Block XXXVII/13 which is registered in the names of Khadija Khamis Shafi and Fadhila Zahran Mohamed the 1st and 3rd Respondents respectively and Aliya Zahran, the Applicant as trustees of the Wakf of Mwana Mishi Binti Aziz Bin Juma. This demonstrates that the order of 30. 6.17 has been executed. In the circumstances, the Application dated 26. 7.17 has been overtaken by events and there is nothing to stay. The horse has bolted! In the premises, the Application is dismissed but with no order as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 15th day of February 2019

_____________

M. THANDE

JUDGE

In the presence of: -

……………………………....... for the Applicant

………………………………....for the Respondents

……….…………………………Court Assistant