[2022] KEHC 12000 (KLR)

In re Estate of Laila Chagan Sidi (Deceased) (Probate & Administration 85 of 2019) [2022] KEHC 12000 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12000 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 85 of 2019

EKO Ogola, J

July 18, 2022

Between

Samshudin Jafferalli Boghani

Petitioner

and

Rahemet Nazarali

Objector

also known as Rahematbai Bahadurali Ismail Nazarally Nee Rahemutbai Chagan Sisi Alternatively, Rahemat Chagan Sisi

Ruling

1. Before me for determination are Summons dated May 27, 2021in which the Petitioner seeks the following orders;1)Spent.2)That this Honourable Court be pleased to order stay of execution of the orders issued on May 25, 2021pending the hearing and determination of this application, and subsequently the hearing of the appeal.3)That this Honourable Court be pleased to stay the proceedings herein pending the hearing and determination of this application and the subsequent appeal.4)That this Honourable court be pleased to grant the Petitioner leave to appeal the grounds issued on May 25, 2021.

2. The application is premised on the grounds on the face thereof and is further supported by the affidavit of Samshudin Jafferalli Boghani sworn on May 27, 2021.

Petitioner’s/Applicant’s Case 3. The Petitioner deposed that he is the administrator of the estate of Laila Chagan Sidi. What the Objector herein filed 2 applications, one dated 7th December, 2020 seeking to vary the orders issued on 22nd October, 2020 requiring the Objection to be heard by way of viva voce evidence and another dated 8th December, 2020 requiring him to produce to an accurate account of the estate of the deceased. That the said applications were canvassed by way of written submissions and the Court rendered its Ruling on 10th May, 2021 allowing both applications.

4. Being aggrieved by said decisions, the Petitioner now seeks leave to appeal against the same. According to the Petitioner it is in the interest of justice that he be granted leave to appeal and that there be stay of execution of the said ruling and stay of the proceedings herein pending hearing and determination of the appeal.

5. The Petitioner’s case is that he has an arguable appeal with high chances of Success.

6. The Petitioner further deposed that no prejudice will be occasioned to the objector if the orders sought are granted.

Objector’s/Respondent’s Case 7. In opposition, the Respondent filed a Replying Affidavit dated June 11, 2021. The Objector/Respondent averred that this instant application is an abuse of Court process, bad in law, frivolous, vexatious and intended to buy the Petitioner time so as to continue intermeddling and to illegally and unjustly enrich himself from the estate of the deceased to her detriment.

8. The Objector contends that the order issued by this Court on the May 25, 2021vide its Ruling delivered on the May 10, 2021cannot be stayed as the said order directed the Petitioner to render accurate accounts of the estate of the deceased within 30 days from May 10, 2021. The Objector further contends that the Grant of Letters of Administration Intestate was issued to the Petitioner herein on September 17, 2019and to date the administrator has never rendered full and accurate accounts of the estate of the deceased. The Objector maintains that Section 83 (e) of the Law of Succession Act required the administrator to render an account within (6) months of his appointment. The Objector further maintains that Section 83(6) of the Law of Succession Act allows Court on its own motion to require an administrator of the estate of the deceased to produce to Court an accurate account of all dealings in respect of the estate of the deceased.

9. The Objector contends that the order that she be granted leave to participate in the proceedings via video link cannot be stayed as the same is now enshrined in the Kenyan Laws vide Gazette Notice No. 2357 of the Chief Justice’s Practice Directions on Electronic Case Management (Electronic Case Management Practice Directions, 2020)

10. The Objector contends that the sole intention of this instant application is to prevent her from accessing justice yet she is 87 years old, and her health is deteriorating by the day. The objectors urged Court not to stay these proceedings.

11. The Objector further contends that the time within which to appeal has since lapsed and the Petitioner has not sought for leave to file an appeal out of time.

12. The Objector contends that 30 days within which the Petitioner was ordered to produce before Court a full and accurate account of the estate of the deceased has since lapsed. The Objector’s case is that Petitioner is in contempt of the said Court orders.

13. The application was canvassed by way of written submissions. Both parties have filed their submissions which I have carefully considered.

Determination 14. I have considered the application, the response thereto, and submissions by both Counsel. The only issues for determination is whether the Petitioner/Applicant has met the threshold for grant of stay of execution pending appeal and stay of proceedings pending appeal.

15. The conditions for granting of stay of execution pending appeal are well settled. An order for stay is a discretionary remedy. The discretion is however, circumscribed by the conditions set out under Order 42, Rule 6 of the Civil Procedure Rules. These are that the application should be made without undue delay; should show that substantial loss may be suffered by the applicant unless the order is made and finally that the applicant should offer such security as may be ordered by the court.

16. In the case of Antoine Ndiaye vs African Virtual University (2015) eKLR, the Court held that an Applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the certain conditions namely:-i.that substantial loss may result to the Applicant unless the order is made;ii.that the application has been made without unreasonable delay, and;iii.that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.

17. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.

18. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Applicant with those of the Respondent.

19. In the present cause the Applicant seeks stay of execution of the orders issued by the Court in its Ruling dated May 10, 2021. From the record before me it is clear that the Ruling 10th May, 2021 directed as follows;a)That the orders made herein on October 22, 2020to have the application dated May 5, 2020heard in open court be and is hereby varied to the effect that the applicant is hereby granted leave to participate in the proceedings via video link.b)That the petitioner/respondent be and is hereby ordered to, within 30 days from the date hereof, produce before the Court a full and accurate account of the estate of the deceased, Laila Chagan Sidi, from the time of her demise to date.c)The prayer for the depositing of proceeds of rent from the estate is hereby deferred pending accounts.d)Costs of the two applications to be in the cause.

20. From onset I must mention that every party has the right to a fair hearing. The Objector herein is without doubt a resident of Canada. The Ruling delivered on May 10, 2021only allowed the Objector to participate in these instant proceedings via video link. I indeed agree with the submissions of Counsel for the Respondent that pursuant to the Electronic Case Management Practice Directions, 2020 issued by the Chief Justice the use of technology in judicial proceedings is part of judicial processes so as to expedite the proceedings and make them more efficient.

21. The Applicant was also directed to within 30 days from the Ruling, produce before Court a full and accurate account of the estate of the deceased Laila Chagan Sidi, from the time of her demise to date. Section 83 (h) of the Law of Succession Act places an obligation on the legal representative of a Deceased’s Estate to render accounts at any time when required to do so by the Court. More specifically, the provision reads as follows:“Personal representatives shall have the following duties-…to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;…”

22. The Applicant has not demonstrated to this Court any substantial loss he likely to suffer if the Objector is allowed to participate in these proceedings via video link and if he renders a full an accurate account of the deceased’s estate before Court.

23. As to whether the application was filed expeditiously, it is noted that this application was filed on May 28, 2021whereas the Ruling hearing was rendered on May 10, 2021. It is my finding that the same was filed timeously.

24. This was not a money decree and therefore there was no need for security.

25. Flowing from the above it is without doubt that the Applicant has failed to satisfy the conditions to warrant the grant of an order of stay of execution pending appeal.

26. At the very onset, it is prudent to establish that there is a difference between stay of execution pending appeal which is enshrined under Order 42 Rule 6 of the Civil Procedure Rules and stay of proceedings. The test for stay of proceedings is high and stringent since it seriously interferes with the right of a litigant to conduct his/her litigation. It impinges on right of access to justice, right to be heard without delay and right to fair trial.

27. Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”

28. Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, illuminates the threshold for stay of proceedings as follows:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

29. For this Court to grant stay of proceedings, the Applicant ought to have shown that he has an arguable Appeal with high chances of success, such that if stay of proceedings is not granted the Appeal will be rendered nugatory.

30. Having had a look at the draft memorandum of appeal on record, it is my considered opinion that it would not be in the interest of justice to exercise court’s discretion and grant stay of proceedings as it will only serve the purpose of delaying the determination of this matter further, thereby occasioning prejudice to the Respondent. In my view, it would serve the best interests of justice if the matter herein were to proceed as scheduled so as to ventilate the issues therein as opposed to staying the proceedings. The Applicant has also not given any reasons for the delay in filing of the appeal.

31. The provisions of Article 159(2)(a)(b)(c) and (d) of the Constitution of Kenya as read with Sections 1A and 1B of the Civil Procedure Act, Cap 21 enjoin this court to foster and facilitate the overriding objective of the Act to render justice to parties in all Civil Proceedings in a just, expeditious, proportionate and affordable cost to parties. I am not satisfied that the Applicant has demonstrated that he has an arguable appeal to warrant issuance of the orders being sought.

32. From the foregoing I am satisfied that the applicant does not deserve leave to appeal the orders issued on 25. 5.21. That prayer is therefore dismissed.

33. I have also noted that the accounts which were to be reversed have also been rendered. They were filed on 3/8/2021. It is now for the parties to submit to the veracity of those accounts and their relevance to these proceedings.

34. For the above reasons, the Application dated May 27, 2021 is dismissed with costs to the Respondent.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF JULY, 2022. E. K. OGOLAJUDGE