[2022] KEHC 12198 (KLR)

In re Estate of Duncan Kariuki Kinyanjui (Deceased) (Succession Cause 2237 of 1997) [2022] KEHC 12198 (KLR) (Family) (8 March 2022) (Ruling)

Neutral citation: [2022] KEHC 12198 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2237 of 1997

LA Achode, J

March 8, 2022

IN THE MATTER OF THE ESTATE OF DUNCAN KARIUKI KINYANJUI (DECEASED)

Between

Peter Kiiru Kariuki

1st Applicant

Emily Marura Kinyanjui

2nd Applicant

Ann Wangui Kariuki

3rd Applicant

and

John Mbugua Kariuki

1st Respondent

Beth Wambui Kariuki

2nd Respondent

Ruling

1. On 27th May 2020, this court rendered judgment confirming the grant of letters of Administration Intestate of the deceased’s estate to John Mbugua and Beth Wambui (hereinafter the Administrators). The court also distributed the deceased’s estate amongst all the beneficiaries. Thereafter, the Protestors filed an application dated 10th June 2020, in which they sought stay of execution of decree pending appeal. The application was dismissed on grounds that the Protestors had not sought leave of court to appeal against the decision and further that they had not disclosed the grounds of their intended appeal.

2. The instant application was brought by way of summons dated 5th August 2021 under Sections 47 and 50 of the Law of Succession Act, Rules 59,63,67,70 and 73 of the Probate and Administration Rules and Articles 48, 164 and 165 of the Constitution. In the application the Applicants sought orders inter-alia that:a.Spentb.Spentc.The Court do enlarge time to the Protestors/Applicants to apply for leave to appeald.The Court do grant leave to the Protestor/Applicants to appeal the judgment dated 27. 05. 2020. e.Costs do issue

3. The application is supported by the affidavit sworn by the 3rd Protestor on her own behalf and on behalf of the two other Protestors. It was her deposition that the Respondents were issued with grant letters of administration on 10th March 1998. That they sought to confirm the grant in 2015, upon which the Protestors filed an affidavit in protest dated 29th October 2015 and that judgment was entered in favour of the Administrators.

4. The Protestors averred that they had timeously lodged a Notice of Appeal and made an application for stay of execution, which was consequently dismissed on 26th July, 2021 on grounds that the application was premature by virtue of leave to appeal having not been sought and obtained.

5. The Protestors stated that they are desirous of pursuing the appeal. That they have appended a memorandum of appeal demonstrating their grounds for appeal and chances of success.

6. In response, the Administrators filed a joint affidavit sworn by the 1st Administrator on 29th September 2021. They averred that the Protestors have not disclosed any sufficient reasons to warrant grant of stay of execution, enlargement of time to apply for leave to appeal to the Court of Appeal or leave to appeal to the Court of Appeal.

7. The Administrators contended that this court is functus officio as far as granting stay of execution of the impugned judgment is concerned. That the court deliberated on stay of execution and delivered a ruling on 26th July 2021. Further that there is a similar application in Nairobi Court of Appeal Civil Appeal Number 546 of 2021. It was thir contention that the Protestors have not demonstrated that they will suffer substantial loss if the order is not granted.

8. The Administrators averred that the protestors have not shown why leave to appeal was not sought in good time. That the intended appeal has no chance of success and is only meant to delay the resolution of the dispute. Further that the Protestors have not explained why they did not appeal the matter in good time. The Administrators asserted that the notice of appeal is stamped 8th June 2020 when in fact e-filing had been effected and there was no stamping.

9. They further averred that the Protestors have not provided security or intimated intention to provide security as may be ordered by the court for due performance. They denied any intentions to sell off any part of the deceased’s estate. They asserted that the current application is an afterthought and a delay tactic by the Protestors.

10. Ann Wangui Kariuki, the third Protestor, filed a supplementary affidavit sworn on 12th November 2021 in which she deposed that this court has jurisdiction to determine this matter since the substratum of the application dated 10th June 2020 and the instant application are different. That if the application is not granted the Protestors stand to suffer irreparable loss.

11. She denied that there was inordinate delay in filing the current application and stated that the application raises arguable points and that the Notice of Appeal was filed timeously on 8th June 2020. She stated that the Protestors are willing and ready to provide security and further that they stood to suffer irreparable loss and the appeal would be rendered nugatory if the application is not allowed.

12. It was the 3rd Protestor’s contention that the Administrators were intermeddling with the deceased’s property and unjustly enriching themselves with the estate of the deceased.

13. The Application was canvassed by way of written submissions. Counsel for the Protestors filed submissions dated 23rd November 2021. She submitted that this court has jurisdiction to determine this matter and they have a right to be heard on their application for stay. It is her case that the court ought to grant them stay of execution pending hearing and determination of the appeal to preserve the subject matter in dispute, as the appeal would otherwise be rendered nugatory. In support of this assertion she relied on Order 42 Rule 6(2) of theCivil procedure Rules and the cases of NIC Bank Kenya PLC v. Joshua Onani Ogembo(2018)eKLR, Wachira Waruru & Another v. Francis Oyatsi (2000) eKLR and Butt v. Rent Restrictions Tribunal(1979).

14. Counsel further submitted that the trial court failed to take into account pertinent issues like intermeddling by some beneficiaries and the lack of accounting by the administrators.

15. On whether leave should granted to appeal out of time, counsel cited the case of Abdul Aziz Ngoma v. Mungai Mathayo (1976) KLR 61,62 and submitted that the court has discretion to grant leave depending on the circumstance of the case. That the Administrators have not been paying some beneficiaries allowances derived from the estate. Further that the substratum of the appeal is based on the manner in which the estate proceeded for distribution.

16. It is her case that the fact that the application for leave to appeal was not included in the previous application should not bar the Protestors from being heard and justice being administered. To buttress this assertion counsel relied on the case of Athuman Nusura Juma v. Afwa Mohamed Ramadhan Ca No. 227 of 2015.

17. Counsel for the Administrators filed their written submissions dated 6th December 2021. He submitted that the protestors have not given sufficient reasons for the application to be upheld. He relied on the case of Muchanga Investments Limited v safaris Unlimited (Africa) Ltd & 2 others, civil Appeal No. 25 of 2002 (2009) eKLR 229.

18. Counsel submitted that the prayer for stay of execution was already dealt with by this court and that a similar application is currently in the court of Appeal in Nairobi Court of Appeal Number 546 of 2021. While relying on the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 Counsel stated that this court has discretion but that such discretion should be premised on conscientious and judicious decision based defined principles.

19. It is counsel’s submission that the Protestors have not met the ingredients necessary for a stay of execution to be allowed. Counsel cited the cases of Alhyder trading Company Limited v. Lucy Jepngetich Mibei and Machira T/A Machira & Co. Advocates v. East African Standard, Nairobi HCCC No. 612 of 1996 in support of his assertion.

20. As far as enlargement of time to apply for leave to appeal, counsel submitted that the court ought to consider the decision inMwangi v. Kenya Airways Ltd. (2003) eKLR and stated that the Protestors have not shown why leave was not sought in good time. He opined that the protestors ought to have explained the delay sufficiently as was held in the case ofJoel tirop Busienei v. Daniel Randichi (2016) eKLR.

21. On whether leave to appeal should be granted, it was counsel’s submission that the application was not made in a timely manner and thus should fail. He further contended that the Application did not meet the threshold for grant of such prayer. He relied on the cases of Re Estate of Ronald Austine Whittingham (deceased)(2015) eKLR, Fakir Mohamed v. Joseph Mugambi & 2 others(2005) eKLR.

22. I have carefully considered the pleadings of the parties and the written submissions together with the decisions relied upon, and in my view there are 2 key issues for determination.a.Whether this court is functus officio.b.Whether the Protestors should be allowed time to apply for leave to appeal out of time

23. On the first issue, this court concedes that jurisdiction is everything and without it a court has no power to take one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Where a court takes it upon itself to exercise jurisdiction, which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. (see - Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989))

24. The Blacks Law Dictionary defines functus officio as:-Having performed his or her office of an officer or official body without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.

25. The Court of Appeal in discussing the doctrine of functus officio in the case of Telcom Kenya ltd v John Ochanda (2014) eKLR, stated as follows;“Functus Officio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon-

26. Similarly the Supreme Court in Raila Odinga v IEBC & 3 Others Petition No. 5 of 2013, cited “The Origins of the Functus Officio Doctrine with Specific Reference to its Application in Administrative Law” by Daniel Malan Pretorious:-...“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

27. This doctrine implies that once a court passes a valid decision after a hearing, it no longer has authority to re-examine the matter and thus cannot reopen the case. This doctrine limits the authority of the court to take up such a case once final orders have been pronounced subject to section 99 of the Civil Procedure Rules which provides as follows:Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”

28. The doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit based re-engagement once final judgment has been entered and a decree issued. (see –John Gilbert Ouma v. Kenya Ferry services Limited, civil Appeal No. 189 of 2019)

29. The Administrators contend that the prayers sought were already determined by this court in the ruling dated 26th July 2021. This court in that ruling rendered itself thus;From the foregoing, it emerges that it is a requirement to seek leave to appeal decisions of the High Court exercising original jurisdiction in succession matters, and failure to obtain such leave is fatal, as it would lead to the striking out of the record of appeal……….It is therefore a requirement that the Protestors/Applicants seek leave to appeal before filing their intended appeal. Additionally, the application for leave would grant the Court an opportunity to determine whether there are grounds, which may require consideration by the Court of Appeal.

30. The court in reaching the above finding dismissed the Protestors application on grounds that it was premature owing to them not seeking leave to appeal to the Court of Appeal and further not annexing a draft copy of the memorandum of appeal. It is also clear that the orders sought in the current application go beyond seeking stay of execution of decree, which in any case is now overtaken by events. The Application is premised on the right to appeal against the trial courts decision.

31. Considering the wording of the ruling, it is evident that the court’s decision was not made with finality to the extent of locking the Protestors out should they follow the proper procedure and channels. The Court did not pronounce itself denying the Protestors leave to appeal to the court of appeal. This is to say, this court is not functus officio in this matter and can entertain this application.

32. Onto the substratum of this application, I will now consider the second issue, being whether this court should enlarge time to allow the protestors to apply for leave to appeal to the Court of Appeal. It is trite that a party-seeking enlargement of time to apply for leave to appeal should show good cause for doing so. The power to extend time to appeal out of time is donated by Section 7 of the Appellate Jurisdiction act which states: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…………Rule 67 of the Probate and Administration Rules gives this court discretion to enlarge time. It states inter alia that:Where any period is fixed or granted by these Rules or by an order of the court for doing of any act or thing, the court may upon request or of its own motion may from time to time enlarge such period notwithstanding that the period originally fixed or granted may have expired.

33. Such enlargement be exercised at court’s discretion. The principles to be considered in exercising the discretion whether or not to enlarge time are set out in First American Bank of Kenya ltd v. Gulab P. shah & 2 others Nairobi (Milimani) HCCC No. 2255 of 2000 (2002) 1 EA 65 as follows:i.Explanation for the delayii.The merits of the contemplated actioniii.Whether or not the respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

34. In relation to the present case, the judgment the Protestors intends to challenge on appeal was delivered on 27th May 2020. The present application is dated 5th August 2021. The length of delay is therefore over a year. It is the Protestor’s case that the delay occasioned was not inordinate and that they had earlier on filed a notice of appeal on the 8th June 2020 a further application for stay of execution on 10th June 2020 indicating their intention to appeal in good time. The application dated 10th June 2020 was heard and ruling delivered on 26th July 2021. Ideally, the Protestors ought to have applied for leave to appeal soon after the judgment of this court dated 27th May 2020. In their submissions the Protestors concede that the application for leave was erroneously left out on their part.

35. In the circumstance, it is my view that there was delay in filing the current application but the delay was due to the other application made by the Protestors compounded by their erroneous belief that they can appeal a succession matter without leave of court. The current application clearly stems from the courts ruling made on 26th July 2021 in which the court held that the correct procedure would be to apply for leave to appeal before appealing to the Court of Appeal.

36. As far as the merits of the contemplated appeal goes, this court is well aware that it should not delve into the merits of the case at this stage. I note however that the Protestors have indicated that the core substratum of the appeal is based on how the deceased’s estate was distributed. A cursory look at the memorandum of appeal also points to the distribution of the estate being a key factor in the intention to appeal. The Protestors have a constitutional right to appeal and this court will not stand in their way to exercise their right. The merits and demerits of their dissatisfaction should be substantially canvassed in the Court of Appeal for the reason that this court has rendered a decision on what was contested in this cause before it.

37. In view of the above findings, I am satisfied that in the interest of justice and in exercise of the wide discretion bestowed upon this Court on such matters, the Application dated 5th August 2021 has merit. Accordingly, the application is allowed with orders as follows:a. This court does allow the extension of the time within which the Protestors can apply for leave to appeal to the court of appeal against the judgment delivered on 27th May 2020. b. This court does give leave to the Protestors to appeal to the Court of Appeal against the judgment delivered on 27th May 2020 within 60 days from the date hereof failure to which these orders shall stand automatically vacated.c. Each party shall bear own costs.

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF MARCH 2022. ........................L.A. ACHODEJUDGEIn the presence of………………………………Advocate for the ProtestorsIn the presence of………………………Advocate for the Administrators