[2013] KEHC 1164 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO.299 OF 1992

IN THE MATTER OF THE ESTATE OF ISAAC KIPKORIR ARAP SALAT (DECEASED)

ELIZABETH CHEPKOECH SALAT………………………………………………………….APPLICANT

VERSUS

JOSEPHINE CHESANG CHEPKWONY SALAT……...........………………………………RESPONDENT

RULING

The Applicant and the Respondent are widows of Isaac Kipkorir Arap Salat (Deceased). They have a dispute in respect on how the properties that comprise the estate of the deceased are to be distributed. This court heard the dispute and rendered its judgment on 4th February 2011. The Applicant was aggrieved by the decision. She has filed an appeal against the said decision to the Court of Appeal. This court was informed by the parties that the appeal is scheduled to be heard on 26th November 2013. After the delivery of the judgment, the Applicant moved the Court of Appeal pursuant to the provision of Rule 5(2)(b) of the Court of Appeal Rules seeking to stay the execution of the judgment and decree of this court. In a ruling delivered on 23rd March 2012, the Court of Appeal, at page 6 of its ruling rendered itself thus:

“On our own analysis, we are satisfied that if the distribution of the estate is not stayed, the estate will be distributed and is thus likely to be beyond the reach of the applicant and hence the appeal, if successful, may be rendered nugatory. All in all it is in the interest of justice that the distribution of the estate should be stayed. However it is our view that having regard to the interest of beneficiaries, the fact that the estate has not been distributed for a long time and to obviate the estate being wasted, the distribution should be stayed for such a limited but reasonable time as would enable the applicant to mount and prosecute the appeal. Such a limited period would enable the applicant to seek a hearing date of the appeal when filed on a priority basis. For the foregoing reasons, the application is allowed in terms of prayer 2 of the Notice of Motion dated 15th June 2011 to the extent that the execution is of the Judgment and Decree of the High Court given on 4th February 2011 is stayed for a period of nine (9) months only from the date hereof.”

According to the Applicant, she was prevented from prosecuting the appeal within the period stipulated in the ruling because of the schedule of the Court of Appeal. In essence, the Applicant argued that she could not be blamed for the delay in the Court of Appeal fixing the date for the hearing of the appeal within the nine (9) months period indicated in the ruling. On her part, the Respondent stated that upon the expiry of the nine (9) months stay period stipulated by the Court of Appeal, she proceeded to execute the decree and had the properties that were distributed to her by the court registered in her names. Basically she is saying that once the stay period expired, she proceeded to give effect to the judgment of this court.

The application now before this court is predicated on the provisions of Order 40 Rule 1(a) of the Civil Procedure Rules, Section 3A and 63(e) of the Civil Procedure Act. The Applicant seeks orders from this court to restrain the Respondent from further dealing with a property known as LR. No.631/1036 Kericho (IR No.38629) pending the hearing and determination of the appeal that is now pending before the Court of Appeal. The Applicant states that she is apprehensive that should the Respondent not be restrained, she would adversely deal with the property to the detriment of the Applicant. The Applicant is of the view that if the order is not granted, it would render the pending appeal nugatory. The application is supported by the annexed affidavit of the Applicant. The application is opposed. The Respondent swore a replying affidavit in opposition to the application. In essence, she states that the application before the court was incompetent because the Court of Appeal had already rendered a determination on the matter. She further states that that which is sought to be stayed cannot be granted because the Respondent has already transferred the property to her name pursuant to an order of this court.

During the hearing of the application, this court heard oral rival submission made by Mr. Wandabwa for the Applicant and by Mr. Ogembo for the Respondent. This court has carefully considered the said submission. It has also read the pleadings filed by the parties herein in support of their respective opposing positions. The issue for determination by this court is whether the Applicant can be granted the orders craved for in her application. It was common ground that the Applicant exercised the option of moving the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules instead of applying to this court to grant her stay of the execution of the judgment pending the hearing of the appeal. The Court of Appeal rendered its decision pursuant to the application that was made by the Applicant. The Applicant was granted nine (9) months stay of execution of the judgment and decree of this court. The nine (9) months expired before the Applicant prosecuted her appeal before the Court of Appeal.

Now the Applicant has come back to this court seeking orders of stay of execution of the decree and judgment of this court. The Respondent argued that the application was in the circumstances incompetent because a superior court had already addressed the issue of stay of execution. This court agrees with the Respondent. Once the Court of Appeal assumed jurisdiction in respect of the question of whether or not stay should be granted to the Applicant, this court, for all intent and purposes, was deprived of jurisdiction to again deal with the question. It was clear to the court that if the Applicant was aggrieved by the decision that was rendered by the Court of Appeal in the ruling, the Applicant ought to have made an appropriate application before that court to extend the period of stay. For the Applicant to come to this court to seek the same orders is an abuse of the court process. If this court were to entertain the Applicant, it would be tantamount to this court assuming appellate jurisdiction over the Court of Appeal. That would be a legal absurdity. The Court of Appeal is superior to this court and as such this court cannot assume jurisdiction where the Court of Appeal has already rendered its decision.

In the premises therefore, the Applicant’s application dated 30th August 2013 lacks merit and is hereby dismissed with costs.

DATED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2013

L. KIMARU

JUDGE