[2023] KEHC 27186 (KLR)

Haroon & another v Hassan (Succession Cause E501 of 2022) [2023] KEHC 27186 (KLR) (Family) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27186 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E501 of 2022

PM Nyaundi, J

December 8, 2023

IN THE MATTER OF: THE ESTATE OF AHMED ABDULLE NOOR ALIAS AHAMED ABDULLE NOOR (DECEASED)

Between

Fozia Mohammed Haroon

1st Applicant

Mohammed Ahmed Abdulle

2nd Applicant

and

Haawo Dagane Hassan

Respondent

Ruling

1. The Application for determination is Notice of Motion dated 11th July 2023 and is presented Under Section 1A,1B & 3A of the Civil Procedure Act and Order 42 rules 6 and Order 51 rule 1 of the Civil Procedure Rules and seeks the following orders-a.Spentb.That this Court be pleased to stay the proceedings herein pending the hearing and determination of the Applicant’s appeal from the ruling and orders of the Hon. Lady Justice Patricia Nyaundi, delivered on 12th May 2023, of the application dated 6th February 2023.

2. The Application is based on the grounds that appear on the face of the Application and supported by the Affidavit of Mohammed Ahmed sworn on 11th July 2023.

3. The Application is opposed and affidavit sworn by Mansur Muathe Issa on 22nd August 2023 in opposition.

4. The Court directed that the Application be canvassed by way of oral submissions and provided that both parties were at liberty to file written submissions. The Applicants Submissions and List of Authorities are dated 2nd November 2023 while those of the Respondent are dated 2nd November 2023, along with list of Authorities.

Summary Of Applicants’ Submissions 5. The Applicant identifies two principles on which the application turnsa.That there is sufficient cause to order Stay, that is, the substantial loss would ensure from a refusal to grant stayb.The Application is brought without delay

6. It is submitted that in considering the Application the test is not whether the Appeal is arguable and reliance is placed on the decision of Tuiyot J (as he then was) in Imperial Bank Limited (In Receivership) & 2 Others v Alnashir Popat & 17 Others [2017] eKLR.

7. It is submitted that the Applicant is likely to suffer substantial loss as the issue revolves on the possible conflict of interest by Counsel on record for the Respondent.

8. It is further submitted that the delay in filing the Application was not inordinate and that it was not an afterthought as contended by the Respondent. Reliance is placed on the decision of the Supreme Court on Charo v Mwashetani & 3 Others [2014] and the Court of Appeal in Cecilia Wanja Waweru v Jackson Wainaina Muiruri &anor [2014] eKLR, Imperial Bank Limited (Supra) and Port Florence Community Health Care v Crown Health Care Limited [ 2022] eKLR.

9. In the oral submissions the Applicants submitted that the facts in the Succession Cause are not settled and that therefore the issue of potential conflict of interest is real. It is further contended that the 3 children are provided for (Not through the Estate) and that therefore they will not suffer prejudice.

Summary Of Respondent’s Submissions 10. The Respondent identifies the sole issue for determination to be whether the Applicants are entitled to the orders of stay of proceedings sought in the instant application.

11. The Respondent points the Court to the principles that guide the Court in considering an Application of this nature as set out by Ringera J in Nairobi HC Winding Up Cause no 43 of 2000, Global Tours & Travel Ltd and sets them out as followsi.Whether the Applicant filed the Application expeditiouslyii.Whether the Applicants have established a prima- facie arguable appeal; andiii.Whether it is in the interests of justice for the Court to grant a stay of proceedings

12. The Applicant urges that the Court be guided by the decision of Hon. Gikonyo J in Kenya Wildlife Services v James Mutembei [2019] eKLR

13. The Respondent submits that the time taken to file the Application- 50 days- is inordinate and it has not been explained and invites the Court not to exercise discretion in favour of the Applicant. Reliance is placed on the decision in Machira t/a Machira & Co Advocates v East African Standard [2002] eKLR, in which the Court found that delay amounts to abuse of the process of the Court.

14. It is submitted that by failing to avail a memorandum of Appeal, the Applicants have failed to discharge the onus to demonstrate that they have an arguable appeal. It is submitted that the issues presented as raising potential conflict are not the issues for determination in the Succession Cause.

15. Finally, it is submitted that the order for stay of proceedings is not in the interests of justice as it will occasion a delay in the determination of the Objection proceedings and distribution of the Deceased’s Estate to the detriment of the beneficiaries of the Estate.

16. In the oral submissions the Respondent reiterates that the delay is inordinate and is unexplained. It is urged in the absence of a memorandum of Appeal there’s no material upon which the Court will determine whether or not the Appeal is arguable.

17. The Respondent submits that 2 years after the death of the deceased, Administrators are yet to be appointed to administer the Estate, this exposes the Estate to risk of waste.

Analysis And Determination 18. Having considered the pleadings, submissions filed herein along with the oral submissions I discern the following as the issue for determinationa.Whether the Court should grant stay of proceedingsb.Who should pay costs of the Application

19. On the 1st issue, whether the Court should grant Stay of Proceedings. The principles and considerations to guide the Court are well articulated in the decision of Kenya Wildlife Service v James Mutembei (2019) eKLR, cited above.

20. Having regard to the issues raised by the parties I consider the following issues pertinent in arriving at my decision

a.Whether there was inordinate delay.It is not in dispute that the Application was filed 50 days after the ruling was delivered. In determining whether the delay is inordinate, apart from the effluxion of time it would be necessary to demonstrate, that the delay was so inordinate that the Court had to find that the Applicant had been indolent and in so doing a reasonable person would conclude that the Applicant was not minded to prosecute the matter. 21. Further it would need to be demonstrated that the decision to take up the matter inconveniences the Respondent to the extent that the Court has no option as to conclude that the Application amounts to an abuse of Court process. In the circumstances of this matter. The ruling was delivered on 12th May 2023, the Respondent was served with Notice of Appeal on 25th May 2023. The Application for consideration was filed on 11th July 2023. I find that the delay herein is not inordinate.

b.The Second issue is whether the Applicant has demonstrated that they have an arguable AppealIt is submitted that having not filed a memorandum of Appeal the Applicants have not discharged the burden to demonstrate they have an arguable appeal. I can find no legislative or judicial precedent that supports this position. For this reason, I find that for this Court to exercise its discretion it is sufficient that the Applicant has filed a Notice of Appeal and the grounds raised in the reply and submissions demonstrate he has an arguable appeal.

c.On whether the interests of justice favour the granting of the orderI observe that the issue that is being framed for Consideration by the Court of Appeal is whether there is a conflict of interest by the Respondent’s Counsel. In the event that the Appeal is successful, it would mean that the Applicant would be prejudiced by the refusal to stay the proceedings. 22. It is evident therefore that this is a matter in which the Court ought to grant stay of proceedings. I will therefore allow the Application dated 11th July 2023 and stay of proceedings is granted on the following termsa.That the DR Milimani High Court, Family Division to facilitate the typing of the proceedings within 14 days from the date of this rulingb.That the Applicants shall file and serve the Record of Appeal within 45(Fourty- five) days from the date of this Ruling.c.That in the event the Appellant shall default in the order given in Paragraph 22(b) hereinabove, the order of stay of proceedings will automatically lapse and the Respondent will be at liberty to move the court to proceed with the hearing and determination of the Objection filed herein.d.Each party will bear their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. P. NYAUNDIJUDGEIn the presence of:Murgor SC and Omondi Advocates for the Applicant/ PetitionerMs. Ahomo h/b for Mr. Issa for the RespondentSylvia Court Assistant