[2022] KEHC 12533 (KLR)

In re Estate of Celestine Agutu Okello (Deceased) (Succession Cause 3202 of 2014) [2022] KEHC 12533 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12533 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 3202 of 2014

MA Odero, J

July 15, 2022

IN THE MATTER OF THE ESTATE OF CELESTINE AGUTU OKELLO (DECEASED)

Between

Peter Wamae Ngugi

Applicant

and

Veronica Achieng Ochieng

1st Respondent

Christina Achieng Okello

2nd Respondent

Ruling

1. Before this court for determination is the summons for confirmation of grant dated October 7, 2021, in which the executors of the estate of the deceased namely Veronica Achieng Ochieng and Christina Achieng Okello seek the following orders:-“1. That the grant of probate with written will issued to the said Veronica Achieng Ochieng and Christina Achieng Okello on the April 7, 2015 be confirmed and varied in line with the judgment delivered on February 6, 2020 and ruling delivered on September 24, 2020. 2.That the costs of this application be in the cause.”

2. The summons which was premised upon rule 40(1) of the Probate and Administration Rules and section 71 of the Law of Succession Act, cap 160 laws of Kenya was supported by the affidavit of even date and the supplementary Affidavit dated May 4, 2022 both sworn by the executors.

3. In response to that summons for confirmation of grant the objector Peter Wamae Ngugi filed the replying affidavit dated April 1, 2022 in which he opposed the application for confirmation of the grant on grounds that he has a pending appeal against the rulings of September 6, 2020 and September 24, 2020. The objection was canvassed by way of written submissions. The executors filed the written submissions dated May 4, 2022 which the objector relied upon his submissions dated May 5, 2022.

Background 4. This succession cause relates to the estate of Celestine Agutu Okello (hereinafter ‘the deceased’) who died testate in the Karen area of Nairobi County on October 3, 2014. The deceased was survived by the following persons:-i.Peter Wamae Ngugi – husband.ii.Michael Odhiambo Okello – son.iii.Christina Achieng Okello – daughter.iv.Joseph Andrew Owino Okello – son.v.Peter Clement Omoh Okello – son.

5. The deceased left a written will dated October 21, 2014 in which she appointed Veronica Achieng Ochieng and Christina Achieng Okello as executors of the will. Grant of probate was issued to the said executors on April 7, 2015.

6. The objector filed a summons seeking annulment of the grant issued to the two executors. That summons was heard and in a judgement was delivered by Hon Justice Ali-Aroni on February 6, 2020, In said judgment the court directed that certain assets of the estate be valued to enable the judge make final orders regarding the mode of distribution of the estate.

7. Thereafter on September 24, 2020 the same court delivered a ruling setting out the mode of distribution of the estate.

8. In that ruling the court directed that the following properties would devolve to the objector.a.A lorry Reg KAQ 911J.b.Property known as LR No Ngong/Ngong/5527/House No 3/Kiserian.c.Motor vehicle make Mercedes Benz Registration No KAU 118P.

9. Being aggrieved by the decision of the court in the ruling delivered on September 24, 2020 the objector filed an appeal. He also filed a notice of motion dated December 22, 2020 seeking to stay the orders made on September 24, 2020 and also sought leave to appeal out of time.

10. This court heard the application dated December 22, 2020 and vide its ruling delivered on June 25, 2021 dismissed the application for stay. The court did however grant the objectors prayer to file an appeal out of time.

11. Following the ruling of June 25, 2021 the executors filed the summons for confirmation of grant dated October 7, 2021. In paragraph (11) of their supporting affidavit, the executors proposed to have the estate distributed in accordance with the ruling delivered by the court on September 24, 2020.

12. The objector objects to the confirmation of the grant on the basis that his appeal against the judgment dated February 6, 2020 and the ruling of September 24, 2020 is yet to be determined. He averred that it would be a waste of judicial time to have the grant confirmed only to have such confirmation later set aside in the event that his appeal is successful.

13. The position of the executors is that following dismissal by the court of the objector’s application for stay the summons for confirmation of grant ought to be allowed as prayed.

Analysis and Determination 14. I have carefully considered the summons for confirmation of grant dated October 7, 2021, the replying affidavit filed by the objector as well as the written submissions filed by both parties. The only issue for determination is whether the grant ought to be confirmed as prayed.

15. The objector submits that distribution of the estate before his appeal is heard and determined will render his appeal nugatory or at best a mere academic exercise.

16. On their part the executors do not dispute the fact that the objector was indeed granted leave by the court to file his appeal out of time. However, they maintain that the application seeking to stay the orders made on September 24, 2020 was denied. That the objector has not sought a review and/or filed an appeal against the dismissal of his application for stay. That therefore the executors are well within their rights in seeking to have the grant confirmed in line with the ruling of September 24, 2020.

17. It is evident from the record that the objector was on June 25, 2021 granted leave to file his appeal out of time. On June 28, 2021, three (3) days after the ruling the objector filed a notice of appeal. However to date, close of one (1) year later no memorandum of appeal has been filed nor has the record of appeal been filed.

18. The objector in his replying affidavit avers that the delay in filing the appeal has been occasioned by factors which are beyond his control. That the delay has been caused by the failure of the court registry to provide certified copies of the proceedings.

19. It is clear that having filed his notice of appeal the objector sat back and took no further action. The objector has annexed to his replying affidavit dated April 1, 2022, a copy of a letter dated June 29, 2020 addressed to the Deputy Registrar written by the advocate on record for the objector seeking to be supplied with proceedings as well as the judgement of February 6, 2020 and the ruling dated September 24, 2020 for purposes of filing the appeal. From June 2020 to date there has been no further action by the objector and no follow-up letter was written seeking the proceedings. The objector appears to have been quite comfortable with the status quo.

20. The main bone of contention and the reason for the intended appeal is the objector’s grievance by the fact that title No Nairobi/Block 93/965 Plainsview Estate was not allocated to him in the ruling of September 24, 2020.

21. In the ruling dated June 25, 2021 this court observed as follows:-“The applicant’s main grievance is that he was not given sufficient assets out of the estate of the deceased. Specifically, the applicant is of the opinion that another of the estate properties being title number Nairobi/Block 93/965 Plainsview Estate Phase 5 in South B Nairobi ought to have been allocated to him. Whether this property ought to have gone to the applicant or not is a matter for appeal. However, the applicant has not demonstrated what nature of substantial loss he stands to suffer if no stay is granted. The property he is claiming is a tangible asset whose value is quantifiable. The property does not belong to the applicant thus he is not currently being denied of its use/or occupation.”

22. I note that this succession cause has been ongoing since the year 2014 over eight (8) years now. It is desirable that the matter be brought to a close. The grant cannot be held in abeyance pending an appeal which two (2) years down the road is yet to be filed.

23. I have perused the proposed mode of distribution of the estate in paragraph (11) of the supporting affidavit dated December 6, 2021. The same conforms with the decision of the court in the ruling dated September 24, 2020. I note that all the other beneficiaries have filed written consents to the confirmation of grant. In order not to render the objectors appeal nugatory, I do direct that the executors file an amended mode of distribution to exclude the property known as Nairobi/Block 93/965 Plainsview Phase 5 South B. Once the Court of Appeal reaches a decision on the Plainsview property, the executors may file a summons to amend/rectify the confirmed grant.

24. The objector is directed to file and serve his appeal within ninety (90) days of today’s date failing which the executors will be at liberty to file a summons to amend the Grant to include the disputed property.

25. Finally, and in conclusion this court makes the following orders-i.The executors is to file a further supporting affidavit to the confirmation of grant to exclude the property known as title number Nairobi/Block 93/965 Plainsview Estate which is the subject of an intended appeal.ii.The objector to file and serve his appeal within ninety (90) days hereof.iii.Once the appeal is determined the executors to file a summons to amend/rectify the grant accordingly.iv.In the event of failure to comply with (ii) above the executors shall be at liberty to file a summons to amend/rectify the grant to include the disputed property in terms of the ruling dated September 24, 2020. v.This being a family matter each side will met its own costs.

DATED IN NAIROBI THIS 15TH DAY OF JULY, 2022. …………………………………MAUREEN A ODEROJUDGE