RICHARD MULU MUTUA vs RHODA MUMBUA MULWA [2004] KEHC 464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 113 OF 2003

RICHARD MULU MUTUA..............................APPELLANT

VERSUS

RHODA MUMBUA MULWA.........................RESPONDENT

R U L I N G

The appellant seeks orders of stay of the decree issued by the lower court pending appeal and that execution be stayed. The application is brought under Rule 3 (3) of Matrimonial Causes Rules and supported by the affidavit of the applicant. The applicant had filed a petition in the lower court for dissolution of the marriage. Annexture MK1 is a copy of the petition and that when the petition was filed and served, the respondent filed an answer MK2. That the lower court struck out the petition on application by the respondent as per the court’s ruling MK3. The appellant is dissatisfied with the ruling and has appealed against it as per memorandum of appeal MK4. A decree has been obtained and costs assessed and notice to show cause issued and he believes that this appeal has good chances of success.

The application is opposed and a replying affidavit filed by the respondent and the gist of the affidavit is that there is no decree capable of being stayed and there is no merit in the application and that the application is meant to frustrate the respondent award making her incur unnecessary costs.

For an order of stay pending appeal to issue, the applicant has to demonstrate that he has an arguable appeal and the court has had a look at the provisions of Rule 3 and 8A of the Matrimonial Causes Act and a look at the petition as filed MKI contravenes Rule 3 and 8 (a) of Matrimonial Causes Rules. The petition was not addressed to the court as required by Rule 3 nor was it certified as required by Rule 8 (a) Matrimonial Causes Rules.

The respondent is said to be a teacher. The costs whose execution is supposed to be stayed are Kshs.22,395/-. In annexture MK1 – it is indicated that the respondent is a teacher.

There is no evidence that the respondent can not be able to repay the said costs in the event that the appeal succeeds. The applicant has not demonstrated that he will suffer irreparable harm if the order of stay is not granted.

Counsel for respondent contends that there is no decree that can be stayed. The decree Nisi or absolute is different from a decree for costs. I note a certificate of costs was prepared. There can be no execution except there be a decree. If the applicant had fulfilled the requirements for grant of stay the court would have indeed stayed the decree in respect of costs.

However the applicant has not made out a good case for stay pending appeal and the application is dismissed with costs to respondent.

Dated, read and delivered at Machakos this ……………….. day of ………………………. 2004.

R. V. WENDOH

JUDGE