[2016] KEHC 243 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO.1965 OF 2009

IN THE MATTER OF THE ESTATE OF ANTHONY JOHN THOMSON (DECEASED)

BEATRICE WAIRIMU KARIUKI…………………….... APPLICANT

VERSUS

SOLOMON NJOROGE KIORE………………........RESPONDENT

MRS. TINA LOUISE BELCHER …........1ST INTERESTED PARTY

CLARA AMY COX………………..........2ND INTERESTED PARTY

RULING

1. The applicant via the application dated 4th February 2016 seeks leave of court to appeal against the ruling dated 21/11/2014 in succession cause 1965 of 2009 as consolidated with succession cause no. 1788 of 2009 and a stay of proceedings in the said cause for all purposes.

2. The application is based on grounds that by justice L. Kimaru’s ruling dated 21/11/2014 dispossessed the applicant who was a beneficiary of the deceased’s estate of Antony Thompson completely from benefiting from the said will as the court held that the said will was invalid. This she avers is contrary to the clear evidence that the deceased made a will and had intentions to name her as his beneficiary and as such the said ruling does not represent the wishes of the deceased and will cause her great prejudice. She avers that the appeal raises fundamental questions and clear evidence which she intended to bring to court and faults the court for turning her down from cross examining the witnesses who were present in court. In this regard the applicant has lodged a Notice of Appeal on 28th November 2014 against the said ruling which raises fundamental questions of law supporting that she has a legitimate claim to the estate of the deceased. She avers that if the protective orders sought are not granted the proceedings will proceed to the detriment of the applicant.

3. In her affidavit in support dated 4th February 2016 she reiterates the grounds of the said application adding that on 17th December 2014 immediately after delivery of the said ruling, the respondent and interested parties purported to enter into a consent to compromise the matter but parties were ordered to serve her when parties appeared before Justice Musyoka. However, the said parties have refused to serve her. Further that said parties had fraudulently caused a power of attorney be registered at Land Registry before the approval of the said consent in succession cause no 2276, in the matter of the estate of Sheila Thompson. This she claims is evidence that the said parties are intent on using any means necessary including circumventing the court process to ensure the subject property L.R. 1012/47/2 jointly owned by Anthony and Sheila Thompson is registered in their names. She aver that her advocate previously on record had misadvised her that she could not raise an appeal in a succession matter but only learnt that was not the position. She avers that she is greatly aggrieved by Justice Kimaru’s Ruling and how the said court disregarded her evidence.

4. The respondent in opposition to the said application filed a very lengthy replying affidavit dated 29th June 2016. He avers in summary that the applicant lacks locus standi and does not qualify for any stay in Succession cause no. 1965 of 2009 since her petition was dismissed with costs under section 7 of the Law of Succession. That the applicant lodged a Notice of appeal on 28th November 2014 against the said ruling and has never taken any steps to proceed with the matter for over 2 years. That despite being present in court when the said ruling was read she never made any application even orally staying execution. That the applicant was ordered by Justice Kimaru to only deal with issues pertaining to the will. That there is no dispute that the respondent’s company Furncon is a creditor to the Estate in issue adding that it complied with the court’s order to pay and that the applicant should not concern herself with the matter as she lacks locus. That the applicant was invited to partner with fraudster to defrauds the deceased and Furncon Limited as it is not clear how the applicant was appointed by the deceased who was sick and mentally incapacitated. That despite knowledge of Civil case no 109 of 2005 between his company and the deceased she proceeded to sell the suit property and procured a will on the same property alleging that the applicant stole the money paid for the said sale and as such the applicant does not qualify for a stay. That the applicant travelled to France in April 2009 with a view of finding out more about AJ Thompson that would support her intent. That she filed a petition in succession cause no. 1788 of 2009 which was surrounded by criminal activities as the deceased was a stranger to the applicant was surviving on drugs as he suffering from acute loss of memory and could not reason or make responsible decisions and was at the said time detained at the applicant’s home only to be released on 28th May 2009 when the purported will which is said to have been forged and the deceased flew back to France and died a few days later. That the applicant in filing the succession cause no 1788 of 2009 failed to list Solomon Njoroge Kiore and Furncon Limited, the deceased’s daughter and her mother as beneficiaries adding that the applicant purported to claim as against Sheila Thompson’s estate where he is the administrator what he claims was geared towards stealing and had called for investigations.

5. The 1st and 2nd interested parties in opposition to the said application filed a replying affidavit dated 5th July 2016. They aver that the orders sought are not ones this court can grant adding that the orders the applicant seeks to appeal against were given by Justice Kimaru in the High Court and factoring that the application is time barred the application should be entertained at the Court of Appeal that the applicant should have sought leave to appeal within the 14 days of the notice of appeal and not 14 months later as done by the applicant. They challenge the applicant’s claim that she was ill advised by her advocate claiming that being a senior advocate of the High court of Kenya she is knowledgeable on the law. That the applicant is time barred and an appeal is only premised on a fact of law having satisfied that the application has high chances of success, there was no delay in making the application seeking stay of proceedings and that is likely to suffer irreparable loss all which the respondents claim she has failed to do. Further that the applicant will suffer no loss if a consent is entered as to who should administer the estate of Anthony John Thompson, a determination is made on Solomon Kiore’s purchaser’s interest determination of the interested parties interest in Sheila Thompson’s estate and issue on preservation of the deceased’s estate is adjudicated pending final determination of the grant. Adding that any stay issued will put the estate at a risk of being wasted in trying to preserve it.

6. The applicant filed a further affidavit dated 14th July 2015 which the applicant claims is evidence of the volumes of record of appeal and receipt filling of the said record of appeal in the court of appeal as Appeal 171 of 2016.

7. There is the application dated 6th May 2016 by Solomon Kiore seeking that a consent dated 17th December 2014 be adopted by this court. He claims that the said consent will bring to conclusion all the succession causes touching on the estate including succession cause no. 2276 of 2006 of Sheila Thompson and Succession cause no. 1965 of 2009 on the estate of Anthony Thompson. That he has complied with Justice Kimaru’s orders and has since paid the outstanding purchase price adding that failure to record the said consent will expose the estate to suffer more loss and damage. That the said succession cause are over due to be confirmed as the 6 months period has since lapsed. That Furncon has expended over 340 million shillings in these proceedings and if the matter is not concluded it will continue getting more losses.

8. In his affidavit in support of the said application Solomon, avers that he holds a grant ad litem on the estate of Anthony Thompson who is one of the registered person of property L.R. 1012/47/2 which he alleges was purchased by his company Furncon Limited on 2nd July 2015 in line with Justice Kimaru’s decision of 21st November 2015 by paying in full to the deceased’s daughter who were beneficiaries to inherit his estate. Adding that there fraudsters intent on extending corruption to the Land office seeking to disregard an irrevocable power of attorney registered on 12th October 2015 which was donated to him by Clara who has since relinquished their priorities to obtain letters of administration to Anthony Thompson’s estate matters which is under investigation. He avers that there is no dispute on ownership as the suit parcel of land is registered in the names of Sheila and Anthony Thompson. That failure to record the consent will cause him irreparable loss as the whole estate will go to waste. He avers that the letters of administration to the estate of Sheila Thompson obtained in succession cause no 2644 of 2008 and 2391 of 2011 were false proceedings and should be construed as defective as the parties were well aware of the existence of in succession cause 2276 of 2006 reasons he refuses to serve Jonathan Munywoki Muli and Shadrack Mbai Mbiu and Beatrice Wairimu Kariuki whom he claim have been shut out of the proceedings by this court’s earlier orders and as such the said parties have been locked out of the succession proceedings and have no business in pursuing this matter.

9. The respondent in opposing to the said application filed her replying affidavit dated 14th June 2016. She avers that the proposed consent coming for approval touches on two estates that of the late Anthony John Thompson and Sheila Thompson estates comprised in succession cause No. 1965 of 2009 and succession cause no.1788 of 2009 consolidated by this court. Whilst the estate of Sheila Thompson has two succession cause no. 2276 of 2006 and 2392 of 2011 which have since been consolidated. The two estates have one thing in common they have one property in common in Kenya L.R. No. 1012/47/2 measuring 5 acres. Solomon Njoroge Kiore through his company Furncon Limited had sued Mary Hannah Thompson in HCCC No. 6369 of 1991 alleging that he had purchased the suit property from her. The court held that Solomon was guilty of fraud and his claim was dismissed. After Mary’s demise the suit parcel of land was registered in the names of Anthony and Sheila Thompson as tenants in common in equal shares. In 2005 Solomon Njoroge Kiore sued Anthony and Sheila Thompson for the suit parcel of land alleging that in 1998 Anthony Thompson had also sold the suit parcel of land to him adding that Sheila had borrowed him money and secured the same with her share of the suit parcel of land and as such he sought the court to compel the two siblings to transfer the suit parcel of land to him. In response to the said allegations Sheila disputed Solomon’s claim but unfortunately died on 23rd June 2006 before prosecuting the said matter. On 25th September, 2006 Peter Mbiu Muli filed a petition Ad Litem for the estate of Sheila Thompson in succession cause no. 2276 of 2006 for purposes of pursuing claiming to be Sheila’s husband Sheila Thompson’s defence. Solomon Kiore filed an objection but the same was never heard as Peter Mbiu died on 9th May 2007. Solomon also filed HCCC 109 of 2005 seeking to remove trespassers from the suit parcel of land. On 12th June 2008 Solomon applied for a temporary grant of letters of administration in succession no. 2276 of 2005, in the estate of Sheila Thompson and was issued with the same in June 2008 as an administrator he appointed the firm of Waweru Gatonye replacing Sheila’s duly appointed advocates in HCCC no. 109 of 2005 , the suit where he had sued Sheila and Anthony for transfer of the suit property leading to the recording of a consent on the said matter in the said suit. In January 2009 Anthony came to Kenya to sell his land and that is when he got to know of the said consent. He filed a summons of revocation of the ad litem grant issued to Solomon in regards to Sheila Thompson’s estate dated 6th January 2009. However, Anthony Thompson died before the same could be heard and determined. That before his demise Anthony purportedly drew a will in her favor to enable her pursue the revocation for grant and annulment of Solomon’s grant and setting aside of the fraudulent consent. However, Justice Kimaru on 21st November 2014 invalidated the will on grounds that the same was obtained fraudulently a decision she claims lacks coherence as it falls outside the legal parameters and has grave implications reasons she has filed leave to pursue an appeal on the same. That the applicant had on different occasions attempted to have the said consent approved current application and application dated 16th December 2014. However, Justice Musyoka refused to approve the said consent insisting the same to be done in concurrence of all the principal players. She avers that since she has not given her concurrence the court should not approve the said consent. She avers that she cannot give her concurrence as the same will render her appeal nugatory. She avers that the same is pursued in furtherance of a fraudulent purpose. She avers that despite the applicant’s claim he was a purchaser but both Anthony and Sheila Thompson claim otherwise. Adding that the interested parties had earlier entered into a formal agreement for her to pursue the matter on their behalf but later on entered into an unholy alliance with Solomon Kiore to perpetuate and conclude the fraud initiated by Solomon Kiore. She urges the court not to issue the orders sought as the same would be a furtherance of the fraud.

10. The 1st and 2nd interested parties. The 1st interested party is the mother to the 2nd interested party are agreeable to the said consent being adopted. They sought to be enjoined in the suit to ensure that the property L.R. No. 1012/47/2 is transferred to the applicant upon him paying 90,000 pounds which is said to be the balance owing of the purchase price of the suit parcel of land which they claim he has done and it was pursuant to this that they recorded a consent filed in this court on 17th December 2014.

11. From the affidavits filed this is what I gather as the background of this matter culminating to these applications. The property in issue was initially registered in the names of Mary Hanna Thompson who died in United Kingdom on 27th August 1993. A representation of her estate in Kenya was made on 17th January 1995 to Sheila Thompson the deceased’s daughter. Vide application dated 17th January 1995 the said grant was revoked on 25th march 1996 and a new grant was issued with Sheila Thompson and Anthony Thompson as co-administrators. A certificate of confirmation was issued following an application for confirmation of grant made by the co-administrators, which distributed L.R.1012/47/2 between the co-administrators in equal shares. Sheila Thompson died on 23rd June 2009 and Peter Mbiu Muli in his capacity as a widower of the deceased obtained a limited grant as ordered by Justice Rawal. Succession cause no. 2391 of …….relates to the estate of the late Sheila Thomson who died intestate on 23rd June 2010. After her death her husband Peter Mbiu petitioned for a colligenda bona for purposes of pursuing and defending a suit no 109 of 2005 however he died on 19th may 2007 before petitioning for a full grant. Eventually a full grant was issued on 12th June 2008 to Solomon Njoroge. This prompted 2 applications for revocation of grant one dated 6th January 2009 by the estate of Anthony John Thompson and another dated 24th June 2013 made by the Roysambu self-help group. Peter Mbiu Muli died and his sons in Succession Cause no 2276 of 2006.

12. This is when Jonathan Munywoki Muli and Shadrack Mbai Mbiu the deceased’s brother in law and stepson to petition for a grant of letters of administration for her estate. The petitioner obtained a consent to making a grant of administration intestate to persons of lesser priority dated 30th August 2010 allowing Jonathan Munywoki Muli and Shadrack Mbai Mbiu to petition for grant of letters of administration to the deceased’s estate on 3rd November 2011 and the same was gazette on 20th April 2012. The deceased as survived with a ½ share in L.R. No. 1012/47/2 with the other ½ belonging to her brother Anthony Thomson. Grant of letters of administration were issued to Jonathan Munywoki Muli and Shadrack Mbai Mbiu on 25th May 2012. Subsequently on 3rd December 2014 the said administrators applied for confirmation of the said grant attaching their preferred mode of distribution. However, the file is said to have gone missing as evidenced by the letter dated 18th December 2014 addressed to the Deputy registrar of the Family Division expressing concerns this was followed by another letter dated 18th December 2012. Failure to trace the said file prompted the administrators to file application dated 20th January 2015 seeking to be allow to reconstruct the said file.

13. Succession cause no 1965 of 2009 relates to the estate of Anthony Thomson who died between 23rd June 2009 and 6th July 2009. Upon his demise Solomon petitioned this court on 11th September 2009 seeking a grant of administration intestate to the deceased’s estate on basis of a purchaser for value of the deceased’s ½ share of L.R. 1012/47/2.

14. Beatrice Wairimu Kariuki filed a petition for grant of probate with a will No. 1788 of 2009 on 14th August 2009 claiming to be the sole beneficiary of the deceased. The petition was opposed by Tina Louse Belcher Cox mother of Clara Amy Cox, daughter of the deceased who had since been issued with a grant of letters of administration by the court in Saint Lo Cedex, in France. The petitioner Solomon challenged the said will on her behalf on grounds that the bequest was not free property as the same had been sold to him further alleging that the deceased lacked testamentary will to make the said will adding that the same was obtained by fraud, undue influence. The Court on 21stNovember 2014 held that the will purported to have been made by the deceased was invalid. The Court further declared Clara Amy Cox and her mother Tina Louise Belcher as having priority to be granted grant of letters of administration intestate to administer the deceased’s estate. Further, the court ordered that the property remain in the names of the deceased to prevent interference with the said property pending determination of the two succession causes. Solomon was advised to pursue his claim as a creditor from the deceased’s estate at the appropriate time.

15. Mr. Solomon Kiore in his rather long submissions delved into issues that do not necessarily touch on this case in this regard I will restrict myself to issues directly before this court for determination. The petitioner incorporated Furncon Limited in 1982. In 1983 the said company took possession of L.R. 1012/47/2 as tenants via a lease agreement between the petitioner and Mary Hanna Thompson the then registered owner of the said parcel of land. The petitioner has been in possession of the suit parcel of land to-date and has during the said period developed the suit parcel of land by putting up a factory worth billion o shillings. He claims to have received an offer from Mary to purchase the suit parcel of land and paid a deposit. Later on travelled to Japan and upon his return found that Mary was missing these gave rise to two cases HCCC 663 of 1965, HCCC 6346 of 1991and Succession cause no. 2444 of 1994. HCC 6346 had been filed by the petitioner and the same was held res judicata by Justice Aluoch. That later Mary Hanna Thompson died on 27th August 1993 before transferring the suit parcel of land to the petitioner. Subsequently the petitioner travelled to Britain to see Anthony John Thompson and signed another sale agreement on 23rd April 1998 upon which the petitioner paid 1000 Sterling pounds and asked the petitioner to make arrangements to transfer the suit property, a sale agreement he claims was confirmed by Sheila Thompson. Upon his return to Kenya he proceeded to Lands registry to conduct a search only to find that the suit parcel had been fraudulently transferred to Peter Kuria, waititu, Robert, Wairiri and Peter Wairiri Chege on basis of a fraudulent will and a power of attorney. This gave rise to Criminal case no 105 of 2000, which was decided on 9th November 2004 where the court set aside the transfer to the said third parties and the title reverted back to Anthony John Thompson and Sheila Thompson. He submits that there was an understanding that the two siblings would complete the transfer if he met the legal costs of defending the suit premises adding that if it weren’t for Furncon’s efforts the suit premises would have been lost to fraudsters longtime ago. That via letter dated 23rd April 1998 Sheila Thompson confirmed she was acceptable to the sale price and was willing to offset any amount received in cash against the purchase price.

16. I have considered the submissions made both written and oral. The applicant in her application dated 4th February 2016 seeks leave to file an appeal out of time and stay of proceedings pending hearing and determination of the appeal as lodged in the Court of Appeal. Under Section 79G of the Civil Procedure Act, “an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.” In the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others, SC Appl 16/2014, the court laid down certain guiding principles on leave to extend time. It held that, “… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.

It note that extension of time is not a right of a party but is an equitable remedy that is only available to a deserving party at the discretion of the court;

The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court

As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case bass;

Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.

Whether there will be any prejudice to be suffered by the respondents if the extension is granted.

The application should have been brought without undue delay; and

In certain cases, like election petitions, public interest should be a consideration for extending time.

Applying the above principles, the question therefore is whether the applicant has shown good and sufficient cause for not filing the appeal in time.

17. In the case of Branco Arabe Epanol vs Bank of Uganda (1999) 2 EA 22 it was held: “The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessary debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes should be fostered rather than hindered.”

18. Further in the case of Phillip Keipto Chemwolo & another vs Augustine Kubende (1986) KLR 495 the Court of Appeal held that: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of having his case determined in its merits.”

19. It is then upon the applicant to place sufficient material before the court which would explain any delay in filing the Memorandum and Record of Appeal. The Court in exercising its discretion has to balance the competing interests of the applicant with those of the respondent. In the case of M/S PORTREITZ MATERNITY V JAMES KARANGA KABIA, CIVIL APPEAL NO. 63 OF 1997 the Court held that, “That right of appeal must be balanced against an equally weighty right, that of the Plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the Plaintiff of that right.”

20. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercised. In the case of MONICA MALEL & ANOR V R, ELDORET CIVIL APPLN NO. NAI 246 OF 2008, it was held that; “When a reason is proposed to show why there was a delay in filing an appeal it must be specific and not based on guess work as counsel for the applicants appears to show … the applicants are not quite sure of why the delay in filing the notice of appeal within the prescribed period occurred, which amounts to saying that no valid reason has been offered for such delay.”

21. However, it is important to note that the said discretion is not unfettered see the case of HAYWOOD V COPE, (1858) 25 BEAV 140, where it was held that, “…the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider fair, another person may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised. So the person who seeks an equitable remedy must be prepared to act equitably, and the court may oblige him to do so.”

22. In applying the guidelines set out above to the circumstances of this case, the judgment appealed from was delivered on 21st November 2015. Aggrieved by the said decision the applicant filed a Notice of Appeal on 28th November 2015 which was within the stipulated timelines as provided for under Rule 82 of the Court of Appeal Rules. The applicant was then expected to file the appeal within sixty days from the date she filed the notice of appeal. However, there appears to have been undue delay of over 14 months. The applicant in her application has annexed a certificate of delay dated 7th June 2016 indicating that the court took from 28th November 2014 to 7th June 2016 to prepare and supply certified copies of the proceedings to the applicant which hindered her to prepare her record of appeal in the stipulated time as provided for under the law and reasons which were beyond the applicant. This in my view is sufficient reason explaining the inordinate delay in filing the record of appeal on time and find her current application was necessary. Having considered the extenuating circumstances of this case I find that the applicant is deserving of the orders sought orders sought. I am, therefore inclined to exercise the discretion vested in this court in favor of the applicant by granting leave for her to file her appeal out of time. I find that no substantial prejudice will be occasioned on the respondent as he is in current possession of the suit parcel of land.

23. The applicant also seeks Stay of proceedings pending appeal pending the hearing and determination of her appeal which she claims will be rendered nugatory if the property subject of these proceedings is transferred or sold. The circumstances under which the court will grant stay of execution pending appeal are clearly set out in Order 42 Rule 6 of the Civil Procedure Rules which enact:

No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but; the court appealed from may for sufficient cause order stay of execution of such decree or order.

No order of stay of execution shall be made under Sub Rule (1) unless –

The court is satisfied that substantial loss may result to the applicant unless the order is made and that;

The application has been made without unreasonable delay; and Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

24. With regard to whether the application was made without, unreasonable delay, the certificate of delay explain such delay in filing the said appeal record having been on the court’s part and not any fault of the applicant.

25. It therefore follows that whereas the applicant has fully satisfied the court on the two conditions for granting of stay pending appeal, she has not satisfied the court that if the property changes hands and the appeal as intended succeeds, she will not be in a position to refund the money and that therefore they will suffer substantial loss and that the appeal shall be rendered nugatory.

In the case of Machira vs East African Standard No. 2 (2002) KLR 63 it was held thus:- “ To be obsessed with the protection of an appellant or intending appellant in total disregard or mention of the so far successful party is to flirt with one party as crocodile tears are shed for the other, contrary to said principle for the exercise of a juridical discretion. The courts must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in court, which is to do justice in accordance with the law and to prevent abuse of the court process.

26. Order 42 Rule 2 of the Civil Procedure Code provides that, “No order for stay of execution shall be made under Sub Rule (1) unless…imply that the three conditions are inextricable. They must all be met for an applicant to be granted the order of stay of execution pending appeal. However, those conditions are guidelines which the courts follow in the exercise of the discretion to grant o refuse to grant orders of stay of execution pending appeal.

27. In making any orders under the said provisions, this court is enjoined to consider the justice of the case for both parties. The right of appeal is linked to a right to fair hearing and a right to access justice, while appreciating that the respondent should not be denied the enjoyment of the fruits of her lawfully obtained judgment, under Article 159 of the Constitution, justice shall be done to all irrespective of status, which right has to be balanced out against the right of the appellant not to be ousted from the seat of justice by denying them a stay since justice is a two way traffic.

28. This court appreciates that the applicants being a party seeking favorable exercise of the court’s discretion is under a legal duty to place some material before the court upon which such discretion should be exercised. In other words the applicant should prove that the respondent is so underprivileged that if the suit parcel of land is transferred he will not recoup should the appeal succeed, thereby rendering it nugatory.

29. The applicant has not given that he will respondent has not filed an affidavit of means, it may be construed that the respondent is not possessed of sufficient means and therefore not in a position to reimburse decretal money should the appeal succeed. I am enjoined by the holding of the Court of Appeal in the case of NATIONAL INDUSTRIAL CREDIT BANK LTD VS AQUINANS FRANCIS WASIKE COURT OF APPEAL CIVIL APPLICATION NO. 238/2005, the Court of Appeal held:-

“ This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegations that an appeal would be rendered nugatory because the respondent would be unable to pay back the decretal sum, it is un reasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.”

30. Having this in mind this then calls for the balancing of two rights - that of appeal by the applicant and of enjoyment of a lawful judgment and not being discriminated for being of unknown financial means, for the Constitution provides that justice shall be done to all irrespective of status. I find that in ensuring her right to fair hearing of the intended appeal it is only just to grant a stay of proceedings pending the hearing and determination of her said appeal. The applicant’s application dated 4th February 2016 is allowed as follows, the applicant is granted leave to file the appeal out of time against the ruling delivered on 21st November 2014 in Succession Cause No. 1965 of 2009 Milimani consolidated with succession cause No. 1788 of 2009 Milimani in the matter of the Estate of Anthony Thompson (deceased) and pending the hearing of the appeal the proceedings in Succession Court in Nairobi in Cause No. 1965 of 2009 Milimani as consolidated with succession cause No. 1788 of 2009 Milimani in the Estate of Anthony John Thompson (deceased) are also stayed.

31. The applicant/respondent seeks to have the consent dated 23rd September 2008 adopted. Consent is defined by Black’s Law Dictionary Ninth Edition as agreement, approval, or permission as to some act or purpose. What amounts to a valid consent? Black’s Law Dictionary defines a consent judgment to be:- “A judgment, the provisions and terms of which are settled and agreed by the parties to the action”

32. Once a consent is recorded the same forms an, “Agreed judgment” also termed as “consent judgment”; which defined in the same dictionary as:- “A settlement that becomes a court judgment when the judge sanctions it. In effect, an agreed judgment is merely a contract acknowledged in open court and ordered to be recorded, but it binds the parties as fully as other judgments’’.

33. The objector is in his application seeks to have the matter settled by means of having the said consent adopted in court. In the case of Ongoma & Another v. Wanga [1987] KLR 159, the Court of Appeal held, inter alia, that, “a consent judgment is a judgment, the terms of which are settled and agreed to by the parties to the action. In that case the majority, (Platt, J.A dissenting) queried: “where is the evidence that the terms were settled? How am I to tell if the parties agreed? It would have made all the difference if each party had signed or thumb printed. The court then held that the consent in that case:”

34. Other than the applicant no other party in this cause has accepted the terms proposed by the applicant. In my view the same fails to meet the threshold of a consent as other parties have not agreed to the terms proposed by the applicant and as such the same cannot be adopted in court as a consent as it tilts solely in his favor to the exclusion of the other parties. Ongoma & Another v. Wanga supra, it was held, “.... lacks all the essential ingredients of an order made by consent of the parties to an action and is invalid.”

I find that the supposed consent the applicant seeks to have this court adopt is incomplete as it does not have the signatures of all parties in this cause. The same I find lacks the important components that make it a valid consent. This court therefore cannot adopt the same as it does not represent the wishes of all parties concerned. I dismiss the applicant’s application dated 6th May 2016 with costs.

Dated, signed and delivered this 19th day of October 2016.

R. E. OUGO

JUDGE

In the presence of;

..........................................................For the Applicant

..........................................................For the Respondent

…………………………………......For the 1st & 2nd interested parties

MS. Charity Court Clerk