Amelia Karen Hotel v Kibuba & another (Sued as the Personal Representatives of the Estate of Kibuba Nge’the) (Environment & Land Case E099 of 2021) [2022] KEELC 12818 (KLR) (30 September 2022) (Ruling)

Deceased Name

Key Facts

Issues

• The first issue was whether the Applicant demonstrated an error apparent on the face of the record or sufficient reasons to warrant review of the May 19, 2022 order requiring a Kshs 10,000,000 security deposit. The court analyzed arguments about the Tribunal's dismissal of the Reference, the Respondent's alleged misrepresentation regarding security requirements, and the Applicant's financial hardship due to the pandemic.
• The second issue concerned the Applicant's request to enlarge the 10-day period for depositing security to 90 days. The court evaluated this under Section 95 of the Civil Procedure Act, considering the Applicant's failure to meet the original deadline, the Respondent's assertion that execution had already occurred, and whether extenuating circumstances justified the extension.

Holdings

• The court rejected the applicant's request for alternative security (pledge of shares or assets) due to the lack of specific valuation details provided. The applicant failed to identify or value the shares/assets, leaving no basis for the court to grant the alternative security.
• The court dismissed the appellant's application for review and extension of time, finding no valid grounds for review. It concluded the applicant failed to demonstrate an error in the original order and the extension request was no longer relevant due to the passage of time and execution of the order.
• The court dismissed the request to extend the 10-day deadline for depositing security, stating the period had expired and execution had already occurred. It ruled that the application for extension was moot, as the applicant had vacated the premises and the condition for the stay had not been met.
• The court dismissed the argument that the applicant's financial inability to pay the security amount constituted a sufficient reason for review. It emphasized that security orders are not necessarily dependent on a party's ability to pay, as the discretion to balance competing rights is not subject to financial hardship alone.
• The court determined that there was no error apparent on the face of the record regarding the requirement for the applicant to provide security for the stay of execution pending appeal. The court found that the security condition was properly applied under the law and that any disputes about its discretion should be addressed on appeal.

Remedies

Probate Status

Legal Principles

• The court considered the discretionary requirement for security in granting a stay of execution pending appeal under Order 42 Rule 6. It ruled that the security condition was valid and not dependent on the applicant's ability to pay, as the discretionary relief aims to balance both parties' rights.
• The court examined the extension of time under Section 95 and Order 50 Rule 6 of the Civil Procedure Act, noting that it is an equitable remedy requiring the applicant to demonstrate extenuating circumstances, lack of prejudice, and timely application. The applicant failed to meet these criteria.
• The court applied the principle that a review of an order can be granted if there is an error apparent on the face of the record, as per Section 80 of the Civil Procedure Act and Order 45 Rule 1. It emphasized that such an error must be clear and not require further evidence, and in this case, no such error was found.
• The court applied the principle that the applicant in a review application bears the burden of proving that the original decision was erroneous or unjust. The applicant failed to meet this burden by not demonstrating a clear error in the security order or justifying the delay in compliance.

Succession Regime

Precedent Name

• Wangechi Kimata & Another vs Charan Singh (C.A. No. 80 of 1985) (unreported)
• Absalom Dova vs Tarbo Transporters [2013] eKLR
• Butt vs Rent Restriction Tribunal [1982] KLR 417
• Benjob Amalgamated Limited & another vs Kenya Commercial Bank Limited [2014] eKLR
• Nyamogo and Nyamogo v Kogo [2001] EA 174
• Muyodi vs. Industrial and Commercial Development Corporation & Another [2006] 1 EA 243
• Sarder Mohomed v. Charan Singh Nand Singh and Another (1959) EA 793
• Assets Recovery Agency vs Charity Wangui Gethi & 3 others [2020] eKLR
• Apollo Waswa Basude & 2 others (As administrators to the Estate of the late Sepiriya Rosiko) vs Nsabwa Ham, Civil Appeal No 288 of 2016
• Parliamentary Service Commission vs Martin Nyaga Wambora & others [2018] eKLR
• Kenya Trypanosomiasis Research Institute vs Anthony Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs) [2019] eKLR
• Pancras T. Swai vs Kenya Breweries Limited [2014] eKLR

Executor Name

• Loise Wangui Kibuba
• Rahab Wanjiku Kibuba

Cited Statute

• Civil Procedure Act
• Civil Procedure Rules

Executor Appointment

Judge Name

Passage Text

• The fact that the Applicant is unable to afford the security ordered is not in itself sufficient cause warranting a review of its orders...
• In the circumstances, it is apparent that there is no error apparent on the face of the record.
• the issue of enlarging time to allow the Applicant deposit the Kshs. 10,000,000 in a joint account does not arise.