[2022] KEHC 10453 (KLR)

In re Estate of Murungi Rutere (Deceased) (Succession Cause 52 of 2018) [2022] KEHC 10453 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10453 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 52 of 2018

LW Gitari, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF MURUNGI RUTERE - DECEASED

Between

Josphine Muiru Mutegi (Legal Representative of the Late Eustace Mutegi Murugi)

Applicant

and

Agrivine Kaburi Njoka

Respondent

Ruling

1. What prompted this application is a ruling of this court dated 22/7/2021 wherein this court held that the respondent Agrivine Kaburi Njoka is the sole rightful beneficiary of the estate of the deceased Murungi Rutere by virtue of her being his only surviving child. The applicant had laid claim to the estate of the deceased and filed a protest. This court dismissed the protest and distributed the net estate to the respondent. The applicant was dissatisfied with the ruling and intends to appeal against the decision.

2. Before this court presently is the Application dated 28th February 2022 seeking for orders that:a.Spent.b.Spent.c.The Applicant be granted leave by this Honourable court to appeal to the Court of Appeal.d.Costs of this application be provided for.

3. The Application is premised on the grounds on the face of it and it is supported by the affidavit of the Applicant/Intended Appellant sworn on the same 28th February 2022. The Appellant depones that she desires to seek another opinion in the Court of Appeal regarding the issues raised in this cause. The Applicant thus prays for the application to be allowed.

4. The application is opposed by the Replying Affidavit of the Respondent sworn on 17th March 2022. The Respondent depones that the Applicant’s intended appeal does not raise grounds which merits serious consideration by the appellate court. According to her, the Applicant’s motive is to deny her the fruits of the judgment by delaying the expeditious finalization of the matter. She thus urged this court to dismiss the application.

5. The application was canvassed by way of written submissions. The Appellant filed her submission on 1st April 2022 while the Respondent filed her submission on 4th April 2022.

6. It was the Appellant’s submission that her right to appeal to the Court of Appeal is protected under the Constitution and that it would be expedient and in the interest of justice that this court grants her leave to appeal against the impugned ruling. The respondent submits there was in-ordinate delay in filing the submissions which has not been explained.

7. On the other hand, the Respondent contends that the application is brought in bad faith, is a wastage of crucial court time, and is intended to steal a judicial match. On the merits of the application, it was the Respondent’s submission that the same is frivolous in its contents and should thus be dismissed.

Issues for determination 8. The main issues for determination by this court are:a.Whether the Applicant’s submission should be struck off the record.b.Whether the Applicant/Intended Appellant should be granted leave to appeal to the court of appeal.

Analysis Apparent Delay 9. The Respondent contends that the Applicant’s submissions filed on 1st April 2022 should be struck off the court’s record as they were filed out of time in contravention to this court’s directions/orders of 17th March 2022 that the same be filed within 7 days. According to the Respondent, the delay was unreasonable and a malicious tactic that the Applicant employed to steal a judicial match.

10. The record shows that both parties, through their legal representatives, were in court on 17th March 2022 when the court gave directions that the Applicant files her submissions to this application within 7 days. The Respondent was equally given 7 days to file their submission which time was to start running after service by the Applicant of her submissions. The Applicant however filed her submissions 14 days after the said directions were given.

11. The Appellant did not make any submission on this issue.

12. The period of 14 days given to the parties to file submissions was done with an overriding objective to facilitate just and expeditious resolution of the matter. Be that as it may, it is my view that it would be drastic and unfair to strike out Applicant’s submissions on the ground that they were filed out of time. In any case, the Respondent does not stand to suffer any prejudice if this court is to allow the submission as having been filed properly.

13. Pursuant to the provisions of Article 159(2)(d) of the Constitution, which states:“2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles-d)justice shall be administered without undue regard to procedural technicalities.”This court is minded to determine the instant application on substance rather than on a technicality that the Applicant’s submissions were filed out of time.

14. The court has discretion to make such orders as may be necessary to meet the ends of justice and prevent abuse of court process. This is under Rule 73 of the Probate and Administration Rules .The discretion is meant to ensure that the court has wide discretion to ensure that justice is done fairly. This can be achieved by giving a party the opportunity to be heard rather than shutting him out and more so where the adverse party has not suffered any prejudice.

15. Where court has discretion, it is called upon to exercise it to achieve the ends of justice rather than bar itself with procedural technicalities. I find that it is in the interest of justice that the submissions be considered. I overrule the objection and deem the submissions by the applicant as being properly on record.

Merits of the Application 16. The present application is expressed to have been brought under the provisions of Rules 49 and 73 of the Probate and Administration Rules which provide as follows:“49. A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.”73. 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.

17. The Law of Succession Act (Cap 160 of the Laws of Kenya) is silent on the right of appeal from the High Court to the Court of Appeal in succession matters. Leave of this court is therefore necessary where a party intends to appeal against a decision of this court in a succession matter where the court was exercising its original jurisdiction. [See: Peter Wahome Kimotho v Josphine Mwiyeria Mwanu [2014] eKLR and John Mwita Murimi & 2 others v Mwikabe Chacha Mwita & another [2019] eKLR]The Court of Appeal stated that the Constitutionof Kenya 2010 gives the Court of Appeal jurisdiction to hear appeals from the High Court and any other court or Tribunal as prescribed by an Act of Parliament. The court emphasizes that all matters from the High Court are appealable to the Court of Appeal and went ahead to consider the appeal which was filed in the Court of Appeal without first seeking leave.

18. The considerations that this court should take into account in granting or refusing the leave prayed for was laid out in the case of Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] eKLR where the Court of Appeal held that:“In view of these and given the adversarial nature of litigation in our system of justice, it would be unconscionable to allow as final the decision of a single judge, and limit the right of appeal to the High Court, especially now when the court hierarchy has been opened by the creation of the Supreme Court as an apex court.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. [Emphasis added]Considering the above authority it follows that leave to appeal should normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration by the Court of Appeal. In addition, Article 48 of the Constitution requires this court to uphold a party’s right to access justice. This right, in my view, includes the right of a party to appeal to the Court of Appeal if that is the necessary forum to seek for justice in the circumstances. Hence, the exercise of the discretion in granting leave to appeal in succession causes, should be underpinned by the right of appeal provided in the Constitution.

19. In this present case, the Applicant contends that the consequence of the impugned ruling is to dispossess her and her children the only parcel of land that they have developed as their home and lived in all their lives. While it is good practice for courts to promote finality and expedition in the determination of probate and administration disputes, the Applicants have a constitutional right to appeal. To this end, Section 47 of the Law of Succession Act empowers this court to make such orders as are necessary to meet the ends of justice. As such, I find that this court should exercise its discretion to grant the Applicants leave to file the intended appeal to the Court of Appeal.

Conclusion 20. I find that the application dated 28/2/2022 has merits. I order as follows:-1)The application is allowed.2)The applicant is granted leave to appeal to the Court of Appeal.3)The appeal be filed within 21 days.4)Costs to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF MAY 2022. L.W. GITARIJUDGE