MAJK v FML (Civil Appeal E096 of 2022)  KEHC 200 (KLR) (Family) (20 January 2023) (Ruling)
Neutral citation:  KEHC 200 (KLR)
Republic of Kenya
Civil Appeal E096 of 2022
MA Odero, J
January 20, 2023
1.Before this Court for determination is the Notice of Motion dated 30th September 2022 filed under certificate of urgency by which the Appellant/Applicant MAJK seeks the following orders:-
2.The motion which was premised upon orders 40 Rule 1 and 42, Rule 6 and 51 of the Civil Procedure Rules, sections 1A, 1B, 3A of the Civil Procedure Act, Articles 27, 48, 50, 159 and 165, 53 (e) of the Constitution of Kenya 2010, the inherent powers of the court and all enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant.
3.The Respondent FML filed Grounds of opposition as well as a Replying Affidavit both dated 26th October 2022 in opposition to the application. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 1st November 2022. The Respondent through his Advocate Dr Thiankolu opted not to file any written submissions but instead relied entirely upon the Grounds of Opposition and Replying Affidavit.
4.On 27th September 2022 Hon H.M. NYAGA Chief Magistrate delivered his judgment in respect of Civil Suit No. 272 of 2019 which had been filed by the Appellant. In that judgment the learned trial court ruled that no valid marriage existed between the Applicant and the Respondent. The trial court found that the Plaint dated 17th June 2019 was devoid of merit and proceed to dismiss the same.
5.The Applicant was aggrieved by the decision of the trial court. The Applicant averred that the interim orders which she had secured to preserve the property known as Mae Ridge Country Villas No. xx erected on L.R. No. xxxx/xxxx (I.R. xxxx) (hereinafter the ‘suit property’) during the pendency of the divorce proceedings lapsed upon delivery of the judgment on 27th September 2022. That there was the real apprehension that the Applicant would be evicted from the home which she occupied with the Respondent until their union broke down which home she still occupies to date. That if the orders of stay are not granted the Applicant is likely to be rendered homeless.
6.As a result the Applicant filed the Memorandum of Appeal dated 30th September 2022. Contemporaneously with that Memorandum of Appeal the Applicant filed the instant application seeking an order of stay in respect of the said judgment as well as preservatory orders in respect of the suit property.
7.As stated earlier the application was vehemently opposed by the Respondent who raised the following Grounds of Opposition to the same.3.The dismissal of the divorce cause (on the ground that there is no marriage between the parties due to lack of capacity on the part of the Respondent) is analogous to a negative order that is not amenable to stay of execution pending the hearing and determination of an appeal.4.The Applicant has access to a generous housing mortgage by virtue of her status as a Member of Parliament and is thus capable of securing alternative first-class accommodation for herself pending the hearing and determination of the appeal.5.The applicant has engaged in ligation by ambush by-a.Failing to serve the order/Directions issued by Justice Maureen Odero on 3rd October 2022.b.Failing to serve the order/directions issued by Justice Riechi on 25th October 2022.c.Belatedly serving the application on 17th October 2022 fourteen days after the order/directions issued by Justice Maureen Odero on 3rd October 2022.d.Failing to serve the mention and hearing notices or otherwise to disclose to the Applicant that the Application was scheduled for mention and hearing on 27th October 2022 and 3rd November 2022; ande.As a result of (a) to (c) above, leading the Respondent to belatedly discover the mention and hearing dates through the e-filing platform.6.The Applicant does not ex-facie disclose any or any reasonable ground for the grant of the relief(s) that it seeks.”
Analysis and Determination
8.I have carefully considered the application before this court and the Replies filed thereto. The only issue for determination is whether the prayer for stay ought to be granted.
9.Order 42 Rule 6 (2) of the Civil Procedure Rules provides for guiding principles that one must satisfy before the court can grant a stay of execution, it provides as follows:-
10.It is appreciated that stay of execution is a discretionary power however the court in setting out the guidelines for granting a stay, stated in the case of Butt - vs - Restriction Tribunal  eKLR that:-
11.In the case of Loice Khachendi Onyango – vs Alex Inyangu & another  eKLR the court stated as follows on the question of stay pending appeal:-
12.The impugned judgment was delivered on 27th September 2022. This application for stay was filed on 30th September 2022 barely three (3) days after delivery of the said judgment. Accordingly, I find that this application was brought in a timely manner.
13.This court must be careful not to pronounce itself on the pending appeal. The merits or otherwise of that appeal will be determined in the Court of Appeal. The only duty this court has is to determine whether an order of stay of execution ought to be made.
14.The Applicant is aggrieved mainly by the finding of trial court that no valid marriage existed between herself and the Respondent. In this regard the learned trial magistrate stated as follows:-
15.By this judgment the trial court dismissed the Applicants suit. The court therefore made a ‘negative order’. There were no orders made capable of execution by any party. Where such a negative order has been made then there exists no order capable of being stayed.
16.In Western College of Arts and Applied Sciences vs Oranga & others [1976-80] I KLR the Court of Appeal for Eastern Africa held as follows:-
17.Similarly in the present case there were no orders made directing any party to do or to refrain from doing any act. All that the court did was to dismiss the suit filed by the Applicant. It is common ground that on 1st February 2019 the Magistrates court issued interim orders allowing the Applicant exclusive occupation of the suit property. The Applicant has been enjoying those interim orders for the past three (3) years. The temporary orders which had been granted in February 2019 were to remain inforce pending the hearing and determination of the main suit. The suit having now been determined the interim orders were automatically discharged.
18.In Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya)  eKLR the Court of Appeal (Kantai J.A.) held as follows:-
19.Further, in the more recent case of Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others  eKLR, the Court of Appeal expounded on stay of execution stating:-
20.The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (Supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the court had to say on the matter:-
21.The finding of the learned trial magistrate that no marriage existed between the parties is not an order capable of execution. Neither the Applicant nor the Respondent were directed to do or refrain from doing any act as a consequence of the order dismissing the suit. There is therefore nothing to stay.
22.Secondly, the Applicant had sought for interim orders of injunction to prevent her eviction from the suit property. The Respondent pointed out that this very prayer had been denied by the Court of Appeal in Civil Application No. E068 of 2022, which emanated from Nairobi ELC Case No. 6393 of 2021. A copy of the decision of the Court of Appeal has been annexed to the Replying Affidavit (Annexture ‘FML-2’).
23.In her Notice of Motion Application dated 10th February 2022 (before the court of Appeal) the Applicant prayed for a temporary injunction restraining the Respondent by himself, his agents, servants or otherwise howsoever from evicting, removing or in any other way interfering with the Applicants occupation of all that property comprising of Mae Ridge Country Villa No. xxxx/xxxx (IR No. xxxx) pending the hearing and other determination of the intended appeal.
24.The above is exactly the same order that the Applicant now seeks vide prayer (e) of the present application.
25.In dismissing the Applicants prayer for a temporary injunction the Court of Appeal in the Ruling dated 19th August 2022 stated as follows:-
26.In view of the fact that there exist a Court of Appeal decision on the question of a temporary injunction, this court has no authority to revisit the issue. The High Court cannot review and/or set aside a decision made by the Court of Appeal. This matter is now ‘Res judicata’ and it was devious of the Applicant to raise the same issue before this court knowing fully well that the Court of Appeal had already delivered a ruling on the same.
27.Finally and in conclusion, I find that the application dated 30th September 2022 is devoid of merit. The same is hereby dismissed in its entirety. Each party to bear its own costs.
DATED IN NAIROBI THIS 20TH DAY OF JANUARY, 2023.MAUREEN A. ODEROJUDGE