[2023] KEHC 26021 (KLR)

In re Estate of Joseph Kibera Gituro (Deceased) (Succession Cause 548B of 2007) [2023] KEHC 26021 (KLR) (Family) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26021 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 548B of 2007

MA Odero, J

December 1, 2023

Between

Julius Kibera Gituro

Applicant

and

Esther Wairimu Kibera

Respondent

Ruling

1. Before this Court is the Notice of Motion dated October 10, 2022 by which the Applicant Julius Kibera Gituro seeks the following orders:-1. That this Honourable Court be pleased to order a stay of execution of the Ruling/Decree of Hon. Justice A.O Muchelule read/issued on March 28, 2022, pending hearing and determination of Appeal.2. That leave be granted to the Applicant to file an appeal against the Ruling/Decree of the Hon. Justice A.O Muchelule read/issued on March 28, 20223. That the costs of this application be provided for.

2. The application which was premised upon order 42 rule 6 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and all other enabling provisions of laws was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent Esther Wairimu Kibera opposed the Application through her Replying Affidavit dated 13th February 2023. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 30th May 2023 whilst the Respondent relied upon his written submissions dated 17th May 2023.

Background 4. This application arises from a Ruling delivered by Hon. Justice A.O. Muchelule (as he then was) on March 28, 2022. In the said Ruling the Hon. Judge made the following determination:-“… Consequently, I determine that each of the six children of the deceased will get one acre of Gikondi/Thimu/366. The share of Charles Gituro Kibera will go to Julius Kibera Gituro to hold in trust for himself and for the other children of the said Charles Gituro Kibera in equal shares. The share of Simon Gitari Kibera will go to Esther Muthoni Gitari to hold in trust for herself and the children of the said Simon Gitari Kibera in equal shares. The share of the said Anne Wanjira Kibera will to Beatrice Wangui Mwangi to hold in trust for herself and the children of Anne Wanjira Kibera in equal shares.In those terms, the grant issued to Esther Wairimu Kibera, Julius Kibera Gituro and Esther Muthoni Gitari on November 26, 2019 shall be confirmed.”

5. The applicant being aggrieved by the said ruling purposed to appeal against it. He filed this application seeking to stay the execution of the ruling as well as leave to appeal the said ruling.

Analysis and Determination 6. I have carefully considered the application filed before this court, the reply filed thereto as well as the written submissions filed by both parties. The issues for determination are as follows:-(i)Whether leave to appeal is merited(ii)Whether execution of the said ruling ought to be stayed.

Leave to appeal 7. Section 7 of the Appellate Jurisdiction Act grants to the High Court the discretion to extend time for leave to appeal as follows:-“The High Court may extend the time for giving notice of intention to appeal from a judgement 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…”

8. The provisions of rule 67 of Probate and Administration Rules also gives discretion t this court to enlarge time. It states:“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.”

9. In the case of Mwangi Vs. Kenya Airways Ltd [2003] KLR, the Court of Appeal set down the following guiding principles in the exercise of such discretion and they are as follows:-“a)The period of delayb)The reason for the delayc)The arguability of the appeald)The degree of prejudice the Respondents would suffer if extension is granted.e)The importance of compliance with time limits to the particular litigation or issue.f)The effect, if any, on the administration of justice or public interest involved.”

10. The court notes that the ruling in question was delivered on 28th March 2022. This application for leave to appeal was not filed until October 2022 a full five (5) months after the ruling was delivered. In my view the application was not brought in a timely manner.

11. The Applicant explained the delay by stating that he filed a Notice of Appeal in the court of Appeal but was the same was dismissed on a technicality.

12. Although it is not the duty of this court to comment on merits or otherwise of the intended appeal the Applicant is required to show that he has an ‘arguable appeal’.

13. The Applicant main grievance is that there exist pending suits against the estate of the Deceased and if those suits are concluded the properties in question may revert back to the estate necessitating a redistribution of the estate.

14. The Applicant referred to Mukurwe-ini SPM’s Case No. 8 of 2019 filed by one Esther Wairimu Kibera against the Personal Representative of the estate of the late Charles Gituro Kibera. That suit does not relate to the estate of the Deceased in this matter. It relates to an entirely different estate.

15. The Applicant also indicated that he intended to file a suit in the Environment and Land Court in respect of a property known as Gikondi/Thimu/321.

16. Firstly, that property is not indicated as one of the assets forming the estate of the Deceased herein. Secondly this court cannot be asked to issue orders based on suits which the Applicant ‘intends’ to file. The court can only consider matters which are already in existence.

17. Finally the Applicant has not annexed a draft Memorandum of Appeal to give the court a glimpse of any other grounds of Appeal he may be seeking to rely on. In the circumstances it is difficult to ascertain whether indeed the Applicant has an arguable appeal.

18. For the above reasons I find no merit in the prayer for leave to appeal out of time and the same is hereby dismissed.

19. The prayer seeking stay of execution cannot be considered as no appeal has been filed in the matter.

20. In my view it is not in the interests of the estate to stay execution. This is a very old matter. The Deceased passed away December 1990 – almost two decades ago. This estate needs to be finalized. Moreover the Applicant has not demonstrated to the court’s satisfaction that he is likely to suffered any substantial loss if the stay prayed for is not granted.

21. In the conclusion the Notice of Motion dated 10th October 2022 is dismissed in its entirety. Costs will be met by the Applicant.

DATED IN NAIROBI THIS 1ST DAY OF DECEMBER, 2023. …………………………………MAUREEN A. ODEROJUDGE