[2022] KEHC 26973 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 769 OF 1988

IN THE MATTER OF THE ESTATE OF DES RAJ GANDHI

RAJ KUMARI GANDHI....................................................................RESPONDENT

VERSUS

TRILOK NATH GANDHI...................................ADMINISTRATOR/APPLICANT

AND

BRIJ GANDHI..................................................................1ST INTERESTED PARTY

PRAMILA GANDHI........................................................2ND INTERESTED PARTY

KIRAN GANDHI..............................................................3RD INTERESTED PARTY

ARUN GANDHI................................................................4TH INTERESTED PARTY

MANOHAR LATA GULATI...........................................5TH INTERESTED PARTY

SAROJ WASON................................................................6TH INTERESTED PARTY

RULING

1. This ruling is in respect of the application dated the 16th day of April 2021, in which the Administrator/Applicant is seeking for the following orders;

a. Spent

b. Spent

c. Spent

d. spent

e. The Court to extend time for seeking leave to appeal and grant the Applicant leave to appeal against the Orders of the Court made on the 9th day March 2021

f. The Court to make such other orders as may be necessary in the interest of justice.

g. The costs of the Application be provided for

2. The application is based on the impugned Ruling of this Court made on 9th March 2021. The said Ruling was rendered following the determination of the Summons for Revocation of the Grant, dated the 7th December 2017.

3. It is the Applicant’s case that he is the surviving of the two (2) Administrators of the Estate of the late Des Raj Gandhi (deceased) who died on the 18th day of January 1958, through Letters of Administration granted on the 10th day of October 1988 and confirmed on the 15th day of November 1988. The co-Administrator, Mr. Joginder Kumar Gandhi, died on the 15th day of November 2012. The Applicant contends that L.R No. 209/1874 located along Makuyu Road off Lenana Road in Kilimani within Nairobi City County, the only asset of the Estate, was registered in his name which property he subsequently sold to a third party on the 15th day of August 2017.

4. The Applicant was served with the Summons for Revocation of Grant and in response, he filed his Replying Affidavit in opposition thereof on the 25th day of January 2018 and Further Affidavits dated the 24th day of 2018 and 24th October 2018 respectively. He avers that the Summons were set for hearings inter-partes by way of oral evidence and parties were directed to file witness statements and bundles of documents in preparation for the hearing which he did; he filed his Witness Statement dated the 12th day of November 2019 on the 13th day of November 2019; and a List and Bundle of Documents dated the 13th day of November.

5. The Summons were set down for hearing on the 18th, 19th, and 25th of November 2019 but the same did not proceed on account of the Respondent’s other application dated the 15th day of October 2019 which application was certified urgent and given a hearing date on priority basis for purposes of determining the question of locus standi on the part of the Respondent in filing the Summons for Revocation of Grant.

6. The Applicant is arguing that upon the delivery of the Ruling on the Respondent’s application dated the 15th day of October 2019 rendered on the 20th day of November 2019, the Respondent made an oral application for the Summons for Revocation to be disposed by way of affidavits and written submissions which application he opposed on the ground that contested Probate & Administration matters are determined by way of viva voce evidence. His objection was however overruled by this Court, which directed that the Summons be canvased by way of affidavit evidence and written submissions. It is his case that the impugned Ruling was delivered, the lack of this written submissions on the Court record notwithstanding. The Applicant alleges that he had no notice of the delivery of the impugned Ruling and that he only learnt of the existence once the same was uploaded in the Kenya Law Report Portal on the 23rd day of March 2021.

7. The nature of the impugned Ruling was that the Applicant was required to comply within thirty (30) days’ of its delivery and he was to deposit in court the full amount of the proceeds of sale of L.R 209/1874 together with the instrument of sale within thirty (30) days; in default thereof, the Grant of Letters of Administration Intestate made to him would stand revoked. Further the court directed that, failure to comply would render the sale and transfer L.R 209/1874 by the Applicant (Trilok Nath Gandhi) to any 3rd party null and void.

8. In his Supporting Affidavit, the Applicant depones that this Court in its Ruling did not consider that Kshs. 14,835,621/- was deposited in Court on the 25th day of October 2018 by the Applicant. By dint of this Court’s Order made on the 1st day of October 2018; that Kshs. 6,451,928/- was paid to Kenya Revenue Authority on the 13th day of April 2018 as Capital Gains Tax; Kshs. 1,740,000/- was paid towards legal fees for the Conveyancing, a sum of Kshs. 4,200,000/- was paid as commission for the sale of the property; and other additional expenses amounting to Kshs. 24,460,222 (as per the Estate Accounts). The Applicant is apprehensive that he may be cited for contempt of Court because he may not comply with the direction to deposit the purchase price within the period ordered. He equally fears that the sale of the property to a third party shall become null and void.

9. The application is opposed by the Respondent and the Interested Parties vide their respective grounds of opposition.

10. The 1st, 2nd, 3rd, 4th and 6th Interested Parties Grounds of Opposition dated the 11th day of June 2021 wherein they are of the view that the application is unmeritorious and fatally defective on the grounds that the Applicant failed to file any Notice of Appeal against the impugned Ruling within the prescribed timeline and that the delay is inordinate having been filed more than five (5) weeks after the delivery of the Ruling. That the application does not exhibit the allegations and as such the same is a mere unsubstantiated claim.

11. Further that the applicant approached this Court with unclean hands noting that he already admitted to unlawfully selling L.R No. 209/1874 for his sole benefit and has a long history of refusing to abide/comply with the Orders of this Court. It was also their contention that the Applicant failed to demonstrate the substantial loss/prejudice he stands to suffer if his present application is not allowed. They urged that the application is a delay tactic to an already very old matter spanning over thirty-three (33) years and that the Respondent and the Interested Parties are entitled to enjoy the fruits of the Ruling. That any attempts to deny them would be extremely prejudicial.

12. In the foregoing, the 1st, 2nd, 3rd, 4th and 6th Interested Parties are urging the Court to dismiss the Notice of Motion. The aforesaid notwithstanding, they are of the view that if this Court is inclined to allow the application, let it be on conditions that:

a) The Applicant immediately deposit the full undisputed sale proceeds totaling Kshs 112,835,621/- in the interest earning bank account jointly held in the names of Walker Kontos Advocates and Ogado & Co. Advocates;

b) Within seven (7) days of compliance with (a) above, Kshs 96,716,246. 58/- out of the undisputed sale proceeds be released to the firm of Walker Kontos Advocates for onward transmission in equal shares to the 1st, 2nd, 3rd, 4th and 6th beneficiaries (Interested Parties herein);

c) Within seven (7) days of compliance with (a) above, Kshs 16,119,374. 43/- be released to the firm of Kimakia Magara & Partners LLP for onward transmission to the 5th Interested Party;

d)The Applicant to immediately deposit the instrument of sale in respect of L.R No. 209/1874 together with relevant proof of payment of any applicable taxes and costs for purposes of verification by this Court and further for determining amounts payable to the interested parties.

13. The 5th Interested Party on her part filed her Grounds of Opposition dated the 21st day of July 2021 disputing the allegation in the Notice of Motion and contending that the application should have been filed within 14 days of the delivery of the impugned Ruling. He stated that the Applicant is undeserving of the Court’s indulgence having not complied with Court Orders himself and that the delay has not been reasonably explained. Further that the Notice of Motion is ripe for dismissal for being incompetent, misconceived, mischievous, frivolous and vexatious there being no conceivable appeal and the same is an abuse of the court process.

14. The application was canvassed by way of written submissions. The Applicant relies on section 47 Law of succession Act, section 66 and 75G of the Civil Procedure Act and Civil Procedure Rules 2010. He submits that he had no notice of the ruling and is thus entitled to leave to prefer an appeal against the whole ruling of the court delivered on 9th March 2021. He further submits that the application was made without undue delay and it is in the interest of justice that the court grants an extension of time to appeal. It is also his contention that the Respondent and other beneficiaries will not be prejudiced since the money was deposited in an interest earning account held in the names of the parties’ advocates.

15. He places reliance on the following cases; Rhoda Wairimu Karanja and Another v Mary Wangui Karanja and Another (2014)eKLR, Makhangu V Kibwana EALR(1995-1998) 1 EA 168 and Nicholas Kiptoo Arap Korir Salat V the Independent Electoral and Boundaries Commission and 7 others (2014) eKLR

16. The 1st, 2nd, 3rd, 4th and 6th Interested Parties submit that the Applicant’s application falls under section 39(a) (application for leave to appeal in civil matters) of the Court of Appeal Rulesand as such should fail because the application was served five (5) weeks after the ruling was delivered. They contend that the Applicant has not given any reasonable explanation for the delay in seeking leave to appeal. To buttress their assertion they relied on the case of Rebecca Mijide Mungole and Another V Kenya Power and lighting Company ltd.

17. They also rely on the case of Re estate of Ronald Austin Whittigham (deceased)(2015) eKLR and submit that the Applicant failed to append a memorandum of appeal to demonstrate that he has an arguable appeal.

18. I have carefully considered the pleadings and submissions made by the parties herein and it is my view that the substantive outstanding issue for determination before this Court is: - Whether this Court should extend time for seeking leave to appeal and grant the Applicant leave to appeal against the impugned Ruling

19. Before the promulgation of the Constitution 2010, appeals in Succession Matters were limited to the High Court as the final court of appeal save for matters from the Kadhi’s Court which could proceed to the Court of Appeal from the High Court with leave of Court. This position was however remedied under the 2010 Constitution in Article 164 which gave the Court of Appeal jurisdiction to hear appeals on all matters from the High Court. It is trite however that succession matters don’t lie as a matter of right rather they ought to be by leave of court.

20. Rule 39 of the Court of Appeal Rules states

a. Where an appeal lies on certification by superior court that the case is fit for such leave may be made informally, at the time when the decision against which it is desired to appeal is given, or by motion or chamber summons according to the practice of the superior court within fourteen days of such decision;

b. Where an appeal lies with the leave of the court, the application for such leave shall be made in a manner laid down in rules 42 and 43 within fourteen days of the decision against which it is desired to appeal or, where application for leave to appeal has been made to the superior court and refused, within fourteen days of such refusal.

21. Taking the cue from the provisions hereinabove, part of jurisprudence from the Court of Appeal prescribes that a party requires leave of the High Court to file an Appeal in the Court of Appeal in succession matters since the right of appeal is not automatically given in the statute. In Rhoda Wairimu Kioi & John Kioi Karanja -Vs- Mary Wangui Karanja and Salome Njeri Karanja, CA Civil App. NAI 69 of 2004 it was held:

“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High Court or where the application for leave is refused with leave of this court.

Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration. We think this is a good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes. So, what is our determination in this application? We have found that the application was presented out of time; that the applicant lacked capacity to bring it at the time he did; that leave of the High Court in succession matters is necessary in the former’s exercise of its original jurisdiction; and that where application for leave has been rejected by the High Court, it can be made to this court.”

This finding has been upheld severally. See John Mwita Murimi & 2 Others v Mwikabe Chacha Mwita & Another (2019)

22. Further to the foregoing, it is provided in Section 7 of the Appellate Jurisdiction Act (Cap 9 of the laws of Kenya) that:

“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired…...”

23. The Applicant does not dispute that he has approached this Court for leave to file an appeal to the Court of Appeal five (5) weeks after the delivery of the impugned Ruling. There is therefore no doubt that this application was made well over the statutory fourteen (14) days period from the date the Ruling was rendered. The Applicant argues that the delay in filing this application on his part was occasioned by lack of notice. It is his case that he did not participate in canvasing the Summons by way of written submissions and as such he was not aware that the matter was fixed for Ruling nor that the Ruling was subsequently rendered. That he only learnt of the Ruling after it was posted on the Kenya Law Report Portal on the 23rd day of March 2021. It is for that reason that the Applicant seeks leave to appeal to the Court of Appeal.

24. The record before this court indicates that the ruling was read on 9/3/2021 where upon the court noted that the Court Assistant had emailed the Ruling Notice to all Advocates on record. A copy of the email is part of the court record.

25. The Court in the case of Almas Hauliers Ltd V Abdulnasir Abukar Hassan (2007) eKLR found that a delay of four months was not inordinate. Comparatively, the Applicant in the instant case delayed by just over a month is filing the present application. I therefore find that the delay by the Applicant is not so ordinate to deny him the opportunity to challenge this court’s ruling.

26. Additionally, the Respondent and the Interested Parties do not contest that the Court has jurisdiction to grant leave to the Applicant so that he can file an appeal out of time. They however argue that this Court should not do so in this case for lack of merit. They argue that the Applicant is guilty of laches, having had notice of the delivery of the impugned Ruling and having failed to act until the present application. Secondly, they argue that failure on the part of the Applicant to annex a copy of the draft memorandum of appeal in the application is demonstration enough that the intended appeal is not arguable hence devoid of merits.

27. Appeals to the Court of appeal require notice of appeal and not memorandum of appeal. Never the less, an appeal from this Court to the Court of Appeal is not a matter of right. Leave to appeal under these circumstances will normally be granted where, prima facie, it appears that there are grounds which merit serious judicial consideration by the Court of Appeal as was held inre Estate of the Late Batholomew Wafula Lule (Deceased) [2019] eKLR. The Applicant has not annexed a copy of his grounds of appeal to enable this Court to interrogate the merits and establish whether he has an arguable appeal.

28. This court however notes that the Applicant argued at length in his affidavit in support, that the basis for seeking leave to appeal out of time, is that he may be cited for contempt for failing to adhere to court order and that the sale of the property to a third party shall become null and void.

29. This Court’s powers to grant leave is discretionary and should be invoked in deserving cases. It has become part of our laws pursuant to Article 159(2)(d) of the Constitution that justice shall be administered without undue regard to technicalities. However, it is equally trite law that Article 159(2)(d) is not a panacea for all procedural impropriety particularly where there are clear prescribed procedures. Nevertheless, the right to appeal is a constitutional principle that must be applied in the interest of justice, to ensure fair administration of justice.

30. In the premise, the Application dated the 16th day of April 2021 be and is hereby allowed. The Applicant has 90 days from the date hereof to file the appeal failure to which the orders in the ruling dated 9th March 2021 will take effect.

31. Costs shall be in the cause.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT ON THIS 11TH DAY OF FEBRUARY 2022.

…………………………

L.A. ACHODE

HIGH COURT JUDGE

In the presence of ………………………………………… Advocate for the Applicant/Administrator.

In the presence of ………………………………………… Advocate for the 5th Interested Party.

In the presence of ………………………………………… Advocate for the 1st, 2nd, 3rd, 4th and 6th Interested Parties.