J A O v N A [2014] KEHC 7026 (KLR)

R E P U B L I C   O F   K E N Y A

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL SUIT NO. 86 OF 2012

J A O .......................... ] PLAINTIFF/RESPONDENT

VERSUS

N A .................................. ]  DEFENDANT/APPLICANT

R U L I N G

The applicant N A filed a notice of motion dated 23/7/2013 in which he seeks stay of execution of this court's judgment delivered on 27/6/2013 pending hearing and determination of an appeal filed by the applicant.  The applicant contends that he has preferred an appeal against the judgment of 27/6/2013 which has high chances of success and that if the orders are not granted, the appeal will be rendered nugatory.

The applicant further contends that the respondent who is a woman of straw may not refund the money in case the appeal succeeds but after the decree of the court has been executed.

The respondent opposed the appeal arguing that the same has no chances of success and that the appeal is only meant to deny her the fruits of her judgment.

The applicant and respondent herein were man and wife before the wife obtained judicial separation after which she filed an application under section 17 of the married women's property Act 1882.  The court ordered that the parties share equally the properties which were found to be matrimonial property.  The applicant being aggrieved with the judgment preferred an Appeal and moved to this court for stay of execution pending appeal.

I have gone through the replying affidavit of the respondent.  At paragraph 10 and 17 of the said replying affidavit, the respondent does not mind the orders of stay being granted as long as the matrimonial properties are not sold or transferred and the monies held at [particulars withheld] Kisumu branch is not transferred or withdrawn.

If I correctly got the submissions of Mr. Bundi for the applicant, he is comfortable if the status quo is maintained.  The status quo as I know it is that the respondent was given exclusive use of Kitale Municipality Block No. [particulars withheld].  The proceeds of sale of Nairobi property which are held at [particulars withheld] Kisumu branch were frozen.  The court orders freezing the account  are still in force and this should be the position.  The applicant should also not transfer any of the properties until the appeal is determined.

As the respondent is not seriously contesting the stay, I grant stay of execution of the judgment of this court delivered on 27th June 2013.  The prevailing status quo should be maintained and any disturbance of the same will lead to an automatic discharge of the stay which will give the respondent liberty to execute the decree without further recourse to court.

I make no order as to costs.

Dated, signed and delivered at Kitale on this 29th day of January 2014.

E. OBAGA

JUDGE

In the absence of parties who were duly informed of today's date which even appeared in the cause list.

Court clerk – Kassachoon.

E. OBAGA

JUDGE

29/1/14