[2023] KEHC 25206 (KLR)

In re Estate of Mbaabu M'Abutu (Deceased) (Succession Cause 383 of 2003) [2023] KEHC 25206 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 25206 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 383 of 2003

EM Muriithi, J

October 30, 2023

IN THE MATTER OF THE ESTATE OF MBAABU M’ABUTU (DECEASED)

Between

Saina Kalimi George

Petitioner

and

Adamson Muthuri Babu

1st Respondent

Musa Mbaabu Ali

2nd Respondent

Henry Mworia

3rd Respondent

and

James Mwenda

Interested Party

Nuru Mbaabu

Interested Party

Ruling

1. By a ruling dated 10/8/2023, this Court made orders on an application for stay of execution pending appeal as follows:1. “The Court grants a stay of execution of the ruling and order of 30/5/2023 for a period of sixty (60) days only to enable the applicant move the Court of Appeal for further orders as necessary.2. The Court directs that the applicant in application for stay of execution dated 5/6/2023 shall file an application for stay of execution before the Court of Appeal within sixty (60) days. The order for stay of execution herein granted shall lapse upon expiry of the said period of sixty (6) days, should the Court of Appeal decline to grant stay of execution pending appeal thereof or to give further orders in the matter regarding the status quo on the suit property.”3. The applicant now seeks by an application dated 26/9/2023 extension of time to file the application for stay of execution before the Court of Appeal citing delay by the court in providing certified copies of the proceedings appealed from, and prays for 30 more days to comply with the orders of the Court.4. The application is opposed by the respondents who urge a twin defence that the applicant does not need the certified proceedings of the court to move the Court of Appeal and that this court is functus officio having already made a decision on an application for stay and made further orders for the applicant to move the Court of Appeal, it cannot be asked to reopen the matter and grant orders with the effect of granting further stay of execution. It was urged that the right form for that would be the Court of Appeal.5. The court would agree that it is functus officio on the question of stay of execution, which it has granted for sixty (60) days to allow the applicant to move the Court of Appeal under Order 42 Rule 6(1) of the Civil Procedure Rules and Rule 5 (2) (b) of the Court of Appeal Rules but on the issue of extension of time to file the application before the Court of Appeal, this court is always empowered under Order 50 Rule 6 of the Civil Procedure Rules as follows:“[Order 50, rule 5. ] Power to enlarge time. 6. Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:

Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”6. In addition, Rule 73 of the Probate and Administration Rules cited by the applicant empowers the court under its inherent powers of court providing that “Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” Once extend the time for complying with the orders of the court, the court necessarily has power to review the order of stay to be co-extensive with the extended period.7. It may be that the Court of Appeal in an application for stay of execution under Rule 5 (2) (b) of the Court of Appeal Rules need only consider whether there is an arguable case and whether the appeal shall be rendered nugatory if stay is not granted, but that is the discretion of that Court, and this court cannot pretend to delimit what material the court may or may not consider in arriving at its decision. The Court is minded to grant the extension sought, on the reasonable grounds to allow the applicant obtain the certified copies of the proceedings of this court sought to be appealed from.

Orders 2. Accordingly, for the reasons set out above, the Court makes the following orders:1. The court extends the time for filing of the stay application before the court of appeal by a further period of thirty (30) days from today.2. As a corollary, the order for stay herein earlier granted is extended for the period of thirty (30) days only.3. The stay of execution herein is only granted to allow the applicant approach the Court of Appeal, as the court to which the appeal is preferred, pursuant to Order 42 Rule 6 (1) of the Civil Procedure Rules and Rule 5 (2) (b) of the Court of Appeal Rules.4. In the event of default of filing of the application for stay in the Court of Appeal within the period granted, or should the Court of Appeal decline the application for stay, the order for stay granted herein earlier shall lapse and be of not effect.

3. Costs in the Appeal.Orders accordingly.

DATED AND DELIVERED THIS 30TH DAY OF OCTOBER, 2023. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Omari for James Mworia and Henry Mworia.Mr. Maranya with Mr. Kaba for Petitioner Musa Mbaabu.Mr. Nyenyire for Saina Kalemi and Raphael Kimani.Mr. Muthomi J. for Ann Mwari.Mr. Mutegi for Yasin Kimathi.