Macharia Gachangaga v Pauline Wanjiru Kamau & Joseph Kamau (Sued as the legal representative of the estate of Peter Kamau Macharia) [2017] KEHC 3995 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL  CASE NO. 110 OF 1983

MACHARIA GACHANGAGA....................PLAINTIFF/RESPONDENT

VERSUS

1. PAULINE WANJIRU KAMAU

2. JOSEPH KAMAU

(SUED AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF

PETER KAMAU MACHARIA)..............DEFENDANTS/APPLICANTS

RULING

1. The Applicant/defendant by his application dated 31st December 2014 seeks an order of stay of execution of the decree pending hearing and determination of the appeal filed against the court's ruling made on the 19th December 2014.

The ruling was pursuant to an application dated 11th July 2014 that sought orders that the Deputy Registrar of this court be authorised to sign all transfer documents and forms relating to the subdivision of the suit land, in line with the decree issued on the 8th February 2013.

2. There is no appeal against the said decree.  This is confirmed by both parties. Judgment of the court was delivered on the 8th February 2013. The ruling appealed from is dated the 19th December 2014.  It authorised the Deputy Registrar to execute transfer and mutation forms and all documents in respect of the suit property in execution of the courts decree. The applicant submits that subdivision of the suit property would cause them irreparable loss in that they were not involved in the exercise of subdivision of the suit property.  For that reason, they seek stay of execution of the orders directed to the Deputy Registrar.

3. The application is opposed mainly on grounds that there is no appeal pending against the Judgment and decree of the court.  It is submitted that an order of stay cannot issue when there is no competent appeal pending for hearing in the higher court.

4. The question that arose from counsel submissions is whether there is a right of appeal against an order of the court on mode of execution of a decree.

Order 43 (K) of the Civil Procedure Rulesstates:

43 (I) An appeal shall lie as of right from the following orders and  rules  under the provisions of Section 75(1) of the Act. 43 (K) Order 22 rules 35, 57, 61(3) and 73 (orders in execution).

Provisions of Order 43 rule (1) (k) is specific on the orders of execution that may be appealed from as of right.  These are Orders 22 rules 25, 27, 61(3) and 73.  I have also considered provisions of Section 75(1) (h) of the Act.  These are orders that are expressly stated to be appealable as of right.

The orders on mode of execution are stated in Section 38, by attachment and sale, or by sale without attachment or in any other manner as the nature of the relief granted may require.

5. The respondent further submitted that the Notice of Appeal filed against the ruling of 19th November 2014 without leave of court is incompetent, and also that the stipulated period of 60 days upon which an appeal ought to be filed has expired and effectively stating that there is no competent appeal upon which the application can stand on. The applicant admitted that there is no appeal on record save for the Notice of Appeal.

6. On the matter of the subdivision and mutation forms complained about, the applicants did not place before the court or demonstrate that they were not involved in the subdivision process.

It is noted that for four years from the date of delivery of the judgment, the applicants have done nothing to progress the matter towards execution of the decree. This application has come too late in the day.  It is also admitted that no proceedings have been requested for to facilitate the intended appeal. It is evident that the applicants are out to frustrate the respondents by delays in their failure to cooperate in the execution process.

7. Order 42 rule 7(1) is specific that:

“Where an order for the execution of a decree from which an appeal is pending, the court which passed the decree or the court to which an appeal is pending in terms of rule 6 shall on sufficient cause being shown by the Appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the court from whose decree or order such appeal shall have been brought.”

8. I am minded that there is no pending appeal against the decree.  I am persuaded that the order appealed from is not one that can be so appealed from without leave of the court. Provisions of the Law under the Civil Procedure Act and the Rules that I have stated above do not allow an appeal from the mode of execution as stated without leave of the court.

It therefore follows that there is no competent appeal upon which the court can grant an order of stay of execution, and specifically on the mode of execution.  See Raymond M. Omboga -vs- Augustine Pya Maraga Kisii HCCA NO. 15 of 2010 quoted in Civil Appeal No. 43 of 2016 Patricia Gitiri Mugushu -vs- Dickson Muriuki Karigi (2017) e KLR -where Makhandia J(as he then was)observed

“the court cannot see how it can order the stay of a decree that is not subject of an appeal--”

To do so, would be to stay execution of the decree that has not been  appealed from or subject of any challenge in a court of law.

9. The applicants submitted that they are ready to proceed and conclude the matter.  That in my view is the right direction and position to take.  It should have come much earlier.

For the above reasons, the application dated 31st December 2014 is devoid of merit. The court however encourages the parties to explore an amicable settlement on the issue of execution there being no appeal against the decree of the court.  It is directed that the execution process be commenced and finalised within 90 days from this ruling.  Parties are at liberty to apply.

10.  Being a dispute between family members in a succession cause, I shall award no costs to either of the parties.

Dated,  Signed and Delivered this 20th  Day  July 2017.

J.N. MULWA

JUDGE