[2023] KEHC 25832 (KLR)

In re Estate of Nancy Wanjugu Mwangi (Deceased) (Succession Appeal 1 of 2018) [2023] KEHC 25832 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25832 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Appeal 1 of 2018

FN Muchemi, J

November 20, 2023

IN THE MATTER OF THE ESTATE OF NANCY WANJUGU MWANGI (DECEASED)

Between

Abraham Maina Mwangi

Applicant

and

Rose Nyambura

1st Respondent

Hellen Wairimu Macharia

2nd Respondent

Lucy Wanjiru Ndungu

3rd Respondent

Magdaline Wamuyu Mwangi

4th Respondent

Jane Nyathogoria Ndungu

5th Respondent

Ruling

Brief Facts 1. The application for determination is dated 28th March 2023 seeking for orders to set aside the orders dated 28th June 2021 and re admit the appeal for hearing.

2. The respondents filed a Replying Affidavit dated 5th April 2023 in opposition to the application.

The Applicant’s Case 3. The applicant states that upon filing his appeal and record of appeal, the lower court file was not forwarded immediately to this court as the respondents filed their application dated 10/11/2020 in the lower court. The applicant states that he subsequently filed a replying affidavit to the said application. On 21/1/2021 when the application came up for hearing but the court was not sitting and that the respondents did not take a further hearing date on their application.

4. The applicant contends that the lower court file was then returned to the High Court without him being notified and he therefore believes that the respondents colluded for the original file to be returned to the lower court and then back to the High Court upon realizing that they had no chance of success in their application.

5. The applicant further states that by a letter dated 2/6/2021 he was notified that his appeal had been admitted for hearing on 21/5/2021. He further states that the respondents filed an application to dismiss his appeal on 21/4/2021 alleging that he failed to pursue the appeal. The applicant argues that he could not take any action to prosecute the appeal without it being admitted for hearing. He further states that he has been inquiring from the court registry about his appeal but he has regularly been told that the court file could not be traced. On 10/12/2021, he states that he sent an application seeking for directions from the honourable court regarding the hearing of the appeal but the court registry never furnished him with an invoice for him to pay for the application. Thus on 25/3/2022, he states that the file was traced through the court’s system and he came to know that his appeal was dismissed on 28/6/2021.

6. The applicant states that he perused the court file and learnt that there was an affidavit of service by Teobald Maina Kihia, a process server, who alleged that he served him with the application for dismissal on 12/5/2021 at Endarasha Township where he claimed the applicant’s home was located. The applicant contends that he does not reside at Endarasha Township and neither does he conduct any business there. He states that he resides in Gitegi village which is more than 15 km from Endarasha Township. As such, the applicant was never served with the said application and requests the court to summon the said process server for purposes of being cross examined.

7. The applicant argues that his sisters, the respondents, know where he resides and he believes that they colluded with the process server to mislead the court to thinking that he had been served with the said application. He further argues that if he had been served with the application, he would have opposed the same since the appeal had not yet being admitted. As such, the applicant prays that the court sets aside the dismissal order dated 28/6/2021 and re-admit his appeal.

The Respondents’ Case 8. The respondents state that the application is an abuse of the court process and ought to be dismissed as the court already made its determination. The respondents further state that the allegations made by the applicant that he was not served are baseless as there is no particular time recorded in the file that the applicant was not duly served as evidenced in all the affidavits of service. The respondents state that the appellant was served with the application dated 12th April 2021 followed by filing of an affidavit of service dated 18th June 2021 with the affidavit of service. The order dated 8th July 2021 was filed together with the affidavit of service.

Whether the applicant is entitled to an order setting aside dismissal of the appeal for want of prosecution. 9. Section 47 of the Law of Succession Act gives the court jurisdiction to entertain any application such as the present one which seeks to enforce the grant to meet the ends of justice. The law concerning dismissal of an appeal for want of prosecution is contained in Order 42 rules 35(1) & (2) of the Civil Procedure Rules which provides as follows:-Unless within three months after the giving of directions under Rule 13 the appeal shall be set down for hearing, the respondent shall be at liberty to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.If within one year after service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.

10. It is trite law that the court’s discretion to set aside an order dismissing the appeal for want of prosecution is unfettered. In Richard Ncharpi Leiyagu v IEBC & 2 Others [2012]eKLR, it was held that the court’s discretion to set aside an ex parte order or judgment for that matter is intended to avoid injustice, or hardship resulting from an accident, inadvertence or inexcusable mistake or error, but not to assist a person who deliberately seeks to obstruct or delay the course of justice.

11. In an earlier case of CMC Holdings Limited v Nzioki (2004) eKLR 173 the court held that:-The discretion must be exercised judiciously……In law, the discretion that a court of law has, in deciding whether or not to set aside exparte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong in principle…..the answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so, she drove the appellant out of the judgment seat of justice empty handed when it had what it might have well amounted to an excusable mistake visited upon the appellant.

12. I have perused the court record and noted that the appeal was filed on 18th July 2018 vide the applicant’s memorandum of appeal. The appellant sought to appeal against the Magistrate’s court’s judgment in Nyeri CM Succession Cause No. 47 of 2018 which was delivered on 16th July 2018. The applicant filed the record of appeal on 10th October 2018. No steps were taken by the applicant to have the appeal listed for directions for hearing. Pursuant to Order 42 Rule 11 of the Civil Procedure Rules, the applicant ought to have set down the appeal for directions within thirty days of filing the record but he failed to do so.

13. The respondents thus filed an application dated 12th April 2021 seeking for dismissal of the appeal for want of prosecution. The court heard the application on 28th June 2021 and upon confirming that the applicant was not present in court after having been served, the appeal was dismissed. It then took approximately one year for the applicant to institute the current application seeking to reinstate the appeal. The appellant stated that he was not served with the hearing notice of the application for dismissal or with the application itself. He further argues that in any event his appeal was admitted on 21/5/2021which was a month after the respondents filed their application to dismiss his appeal. Moreover, the applicant argues that the respondents have colluded in preventing the file from being brought to the High Court registry thus making the file untraceable. Notably, there is a letter dated 2nd August 2018 from the Deputy Registrar of the High Court informing the parties that the original record of the trial court was forwarded to the High Court.

14. Upon perusal of the lower court file and noted that after judgment was delivered, the applicant sought stay of execution of judgment and when the orders were granted on 7th September 2018 he did not attend court for the subsequent application until much later. I have also perused the High Court file and I am not convinced that the file went missing as the respondents managed to file a Notice of Appointment of Advocates on 20th March 2019. It is noted from the record that the process server served the applicant with this application dated 12th April 2021 together with the hearing notice. On further perusal, it is noted that the applicant has been served severally with the application. On the date in issue, the 1st respondent accompanied the process server and pointed out the applicant to the process server. Moreover, I have perused the lower court file and noted that during the hearing before the Magistrate, the applicant testified that he lived in Endarasha Location. I am therefore not convinced that the applicant is telling the truth that he was never served and that he does not reside at Endarasha. The parties herein are brother and sisters and they would know where each of them resides in normal circumstances.

15. Looking at the merits of this application, I find that the applicant is guilty of laches. After obtaining stay of judgment, he went to sleep. The appeal was in court for about three years before admission. It was upon the applicant to hasten the prosecution of the appeal by taking the necessary steps. After he filed the record, the appellant did not move the court for taking of directions. After dismissal of the appeal, it took one (1) year for the appellant to file this application. The actions of the appellant portray him as a litigant who had lost interest in the appeal.

16. I have perused the judgment and noted that the honourable Magistrate distributed the assets of the deceased in accordance with the provisions of Section 38 of the Law of Succession Act among all the beneficiaries who are children of the deceased. It is therefore, unlikely that on appeal the applicant would get a different outcome. Without pre-empting the appeal, I am of the view that it has very limited chances of success.

17. I find no merit in this application and it is hereby dismissed.

18. Each party to meet their own costs.

19. It is hereby ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 20TH DAY OF NOVEMBER 2023. F. MUCHEMIJUDGE