Case ID:175291

Stanley Ng’ang’a Wainaina v Elikanah Mutura Muchina & 2 others [2021] eKLR

Case Metadata

Case Number:

Civil Appeal E0380 of 2020

Parties:

Stanley Ng’ang’a Wainaina v Elikanah Mutura Muchina, (Suing as the legal representative of the estate of David Muchina Mutura (Deceased) Moses Gachathi Matheri & Joseph Kariuki Kamau (Suing as the Legal representative of the estate of Bernard Kamau Mugo (deceased)

Date Delivered:

13 May 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Joseph Kiplagat Sergon

Citation:

Stanley Ng’ang’a Wainaina v Elikanah Mutura Muchina & 2 others [2021] eKLR

Court Division:

Civil

County:

Nairobi

Case Outcome:

Motion allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E0380 OF 2020

STANLEY NG’ANG’A WAINAINA..........................................APPELLANT

-VERSUS-

ELIKANAH MUTURA MUCHINA.................................1

ST

RESPONDENT

(

Suing as the legal representative of the estate of

DAVID MUCHINA MUTURA (Deceased)

MOSES GACHATHI MATHERI....................................2

ND

RESPONDENT

JOSEPH KARIUKI KAMAU (

Suing as the

Legal representative of the estate of

BERNARD KAMAU MUGO (deceased).......................3

RD

RESPONDENT

RULING

1) The subject matter of this ruling is the motion dated 5/3/2021, in which the appellant substantially is seeking for an order for

stay of execution of the judgment/decree of the trial court pending the hearing and determination of this appeal.

2) The motion is supported by a supporting and further affidavit

sworn by the appellant. The respondents filed the replying

affidavit sworn by Joseph Kariuki Kamau to oppose the

application.

3) Learned advocates appearing in this matter made oral

submissions to support their positions.

4) I have considered the grounds stated on the face of the motion

plus the facts deponed in the affidavits filed in support and against the motion. The appellant avers that the trial court proceeded to render a judgment dissolving the partnership with the respondents and that he is aggrieved with the trial court’s

decision hence this appeal.

5) It is argued that unless the decree of the trial court is stayed

the respondents are likely to have it executed and have the

partnership dissolved thus the appeal will be rendered

nugatory.

6) The respondents are of the submission that the learned trial

magistrate did not err in her finding that there was a partnership between the appellant and the respondents. The respondent pointed out that they produced documentary evidence to establish the existence of a partnership while the appellant failed to tender any documentary evidence.

7) The respondents further stated that the appellant

misrepresented facts to this court to obtain unmerited orders. They further pointed out that the application was filed after undue delay of three months.

8) In response, the appellant stated that the court file went

missing and upon its discovery it took time for the proceedings to be typed. It was also stated by the respondents that due to the outbreak of Covid 19 pandemic, the physical file could not be accessed hence the delay.

9) The principles to be considered in an application for stay are

clearly spelt out in Order 42 rule 6 of the Civil Procedure Rules.

First

an application for stay must be filed without unreasonable delay.

Secondly

, the applicant must show the substantial loss he would suffer if the order for stay is declined.

Thirdly

, the provision for security for the due performance of the decree should be taken into account.

10) On the

first principle

, it is not in dispute that there was a

delay of three months from the date of judgment on the part of the applicant before filing the application for stay. However, the appellant offered reasons for the delay. First, it is stated that the court file could not be traced. Secondly, that due to the break out of Covid 19 pandemic, parties could not access the court’s physical file.

11) The respondents did not controvert the facts deponed by the

appellant in the further affidavit. I am therefore convinced the cause for the delay was hence excusable.

12) In respect of the

second principle

, the appellant has stated

that he would suffer substantial loss if the partnership is dissolved pursuant to the decision of the trial court. I am convinced that if the partnership is dissolved, the partnership property may be sold thus making it out of reach for the parties thus rendering the appeal as nugatory.

13) The

third

and final principle is in respect of security. In the

circumstances of this dispute, it may not be appropriate to direct the appellant to provide security for the due performance of the decree. The order for stay in itself will preserve the status quo and the suit property pending appeal.

14) In the end, I find the motion dated 5/3/2021 to be meritorious.

Consequently, an order for stay of execution of the decree of the trial court pending appeal is granted. Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 13TH DAY OF MAY, 2021.

…….….…………….

J. K. SERGON

JUDGE

In the presence of:

…………………………………. for the Appellant/Applicant

…………………………………. for the 1

st

Respondent

…………………………………. for the 2

nd

Respondent