ENK v JNK (Matrimonial Cause 11 of 2007) [2023] KEHC 26108 (KLR) (Family) (1 December 2023) (Ruling)
Neutral citation:
[2023] KEHC 26108 (KLR)
Republic of Kenya
Matrimonial Cause 11 of 2007
MA Odero, J
December 1, 2023
Between
ENK
Applicant
and
JNK
Respondent
Ruling
1.Before this Court for determination is the Notice of Motion dated 18th December 2022 by which the Applicant J N K seeks the following orders:-
2.The application which was premised upon article 48 of the Constitution, section 3A of the Civil Procedure Act and order 42 of the Civil Procedure Rules and orders 51 rules 1 to 3 of the Civil Procedure Rules and was supported by the Affidavit of even date sworn by the Applicant.
3.The Respondent E N K opposed the application through the Replying Affidavit dated 17th March 2023.
4.The matter was canvassed by way of written submissions. the Applicant filed the written submissions dated 14th June 2023. The Respondent did not file any written submissions.
5.The Applicant and the Respondent herein got married to each other on 4th October 1975. Later following a petition filed by the Applicant in the Magistrates Court their union was dissolved.
6.The Applicant then filed in the High Court an Originating Summons dated 14th March 2007.
7.In her Originating Summons the Applicant sought a declaration that the properties which she had listed were jointly owned having been acquired by the couple during the subsistence of their marriage.
8.On 2nd October, 2015 Hon. Justice William Musyoka made the following orders:-
9.Being aggrieved by that decision the Applicant sought and obtained leave to appeal against the judgement. He was granted 30 days stay of Execution on 12th May 2017. However, the appeal was not filed. Instead the Respondent filed another application dated 27th January 2022 seeking to review the judgement of 2nd October 2015 and proposing a new mode of distribution of the matrimonial property. The basis of this application for review was that the Respondent had been unco-operative and had transferred some of the properties into his own name.
10.The application was heard inter parties and vide a ruling delivered by Hon. Justice Muchelule (as he then was) on 27th October 2022, the court rejected the application for review. The court directed that the judgement of 2nd October 2015 was binding and directed that the Respondent surrender all Title Document for the properties in question to the Hon. Deputy Registrar. The court made the following orders:-
11.It was further ordered that if the documents were not surrendered the same would be deemed as lost and the matter dealt with accordingly.
12.The Applicant then filed this application seeking stay of the orders made on 27th October 2022.
13.The Respondent vehemently opposed the application for stay.
Analysis and Determination
14.Order 42 rule 6(2) of the Civil Procedure Rules provides the guiding principles which one must satisfy before the court can grant order of stay of execution as follows:-
15.I have carefully considered the application before this court the reply filed thereto as well as the written submissions filed by the Applicant.
16.The impugned ruling was delivered on 27th October, 2022. The current application for stay was made on December 2022 – a period of two (2) months after the ruling was delivered. In my view this does not amount to an inordinate delay.
17.It is clear to this court that the parties herein have engaged in endless rounds of litigation over issues which the courts have already determined. The Applicant was given 21 days to file his appeal. He has failed to comply.
18.I find no merit in this application for stay. The orders made on October 27, 2022 are valid and binding on the parties. The application is dismissed in its entirety costs are awarded to the respondent.
DATED IN NAIROBI THIS 1ST DAY OF DECEMBER, 2023.…………………………………MAUREEN A. ODEROJUDGE