[2024] KEHC 16401 (KLR)

In re Estate of Nathan Kimaiyo Tarus (Probate & Administration 68 of 2006) [2024] KEHC 16401 (KLR) (23 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16401 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 68 of 2006

RN Nyakundi, J

December 23, 2024

IN THE MATTER OF THE ESTATE OF NATHAN KIMAIYO TARUS (DECEASED)

Between

Rosaleen Chelagat Kogo

Petitioner

and

Eviline Abraham

Objector

Ruling

1. The Objector filed an application dated 6th November, 2024 seeking for orders that:a.Spentb.There be a stay of the enforcement of the Certificate of confirmation of grant and or the distribution of the estate pending the hearing interparties and the determination of the application.c.The enforcement of the Certificate of confirmation of grant and or the distribution of the estate be and is hereby stayed pending the hearing and determination of the intended appeal.d.Costs be in the cause.

2. The application is supported by an affidavit sworn by Eviline Abraham together with grounds thereof being; that on 25th September, 2024 this court delivered a ruling disallowing the application for revocation of grant of letters of administration issued to the Petitioner; that the applicant filed a notice of appeal against the decision of this court made on 20th September, 2024 disallowing the application for revocation and subsequent revocation of the letter of grant of administration issued to the Petitioner; that the honorable court’s decision is the subject of challenge in the intended appeal to the Court of Appeal; that the intended appeal is arguable; that the notice of appeal has been filed without delay; that the applicant’s intended appeal will be rendered nugatory in the event a preservative order restraining the Respondent by himself, his agents or servants, employees or any other assigns or representatives from in any away dealing with the estate of the deceased is not issued.

3. In response to the application, the Respondent through her written witness statement made the following significant averments:a.That the Certificate of Confirmation to the estate of the deceased was confirmed and issued to me on 26th July, 2024. b.That the said Certificate of confirmation has errors on the face of it in that some of the properties of the estate were left out, which include ITIGO FARM-LR NO. 8309, TURBO TOWN PLOT & 2000 shares at Chipokaa House limitedc.That it is vital to so rectify the confirmation of grant by rectifying the parcel of land to include the following properties left out being: ITIGO FARM-LR No. 8309, TURBO TOWN PLOT & 2000 shares at Chipokaa House Limited.d.That the Notice of Appeal is merely an intention to appeal and is not by itself sufficient to support an application for stay.e.That under the Court of Appeal Rules, the applicant who seeks to secure a stay of execution should demonstrate an arguable case and show that the intended appeal would be rendered nugatory if the stay is not granted.f.That the applicant has not placed before the Honorable court evidence to support its application, hence the court has been left to speculate whether such a case has been or has not been made out by the applicant.

Analysis and Determination. 4. The application before this court seeks stay of execution of the Certificate of Confirmation of Grant issued on 26th July, 2024. The primary issue for determination is whether the applicant has met the threshold for grant of stay of execution pending appeal.

5. The jurisprudence on stay of execution is well-settled. The Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 established that while the power to grant or refuse stay is discretionary, such discretion must be exercised judiciously based on established principles. The court must balance two competing interests: first, that a successful litigant should not be denied the fruits of their judgment without compelling reason; and second, that the right of appeal, where properly pursued, should not be rendered nugatory.

6. In examining this application, the court must consider several interconnected aspects that form the foundation of any stay application in succession matters. The court must first determine whether the mere filing of a Notice of Appeal provides sufficient basis for granting a stay, particularly given the special nature of succession proceedings. This analysis naturally leads to the question of whether the applicant has demonstrated the substantial loss that would result without the stay. These considerations ultimately guide the court in determining whether the threshold for preserving the subject matter pending appeal has been met, bearing in mind the delicate balance between protecting appellate rights and ensuring the orderly administration of estates.

7. On the first aspect, the respondent correctly posits that a Notice of Appeal, being merely an expression of intention to appeal, is insufficient on its own to support a stay application. An applicant must demonstrate more than just an intention to appeal, they must show an arguable appeal with reasonable chances of success. In the present case, while the applicant contends that "the intended appeal is arguable," no specific grounds demonstrating the appeal's merit have been placed before this court. The application merely states that "the honorable court's decision is the subject of challenge" without elaborating on the specific grounds of challenge or their merit.

8. Regarding substantial loss, the threshold is particularly high. As established in Machira t/a Machira & Co. Advocates v East African Standard (No 2) [2002] KLR 63, and reinforced in the recent succession matter of Erasto Kiwinga Tole (Succession Cause No. E002 of 2021). The Court in Machira t/a Machira & Co. Advocates v East African Standard (supra) stated as follows:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

9. The applicant must establish factors that show execution will create a state of affairs that will irreparably affect or negate the very essential core of the appeal. A mere apprehension of loss is insufficient. The applicant's affidavit simply states that the appeal will be rendered nugatory without a preservative order, but fails to demonstrate specific, tangible loss that would occur. This falls short of the standard established in James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR, where the court emphasized that proof of substantial loss is the cornerstone of stay applications.

10. The respondent's admission regarding omitted properties (ITIGO FARM-LR NO. 8309, TURBO TOWN PLOT & 2000 shares at Chipokaa House Limited) presents an interesting dimension. However, this admission, rather than strengthening the case for stay, actually points to the need for a different remedy namely, rectification of the Certificate of Confirmation under Section 74 of the Law of Succession Act. The existence of omitted properties does not automatically translate to substantial loss that would justify stay of execution of the entire certificate.

11. A critical factor that weighs heavily against granting stay is the absence of evidence supporting the applicant's assertions. As the respondent correctly points out, the court has been left to speculate whether a proper case has been made out. This runs contrary to the principle established in numerous authorities that the court's discretion must be exercised based on concrete evidence, not speculation.

12. Having carefully considered the application against established principles and authorities, I find that the applicant has not met the threshold for grant of stay of execution. The application is premised largely on general assertions without specific supporting evidence of substantial loss. The applicant has neither demonstrated an arguable appeal beyond mere filing of a Notice of Appeal nor offered any security for due performance.

13. The court’s jurisdiction to grant a stay or a suspension of an order made on the merits of the issues canvassed must be based upon the principles of justice which require that the court should be able to take steps to ensure that its final judgments are not rendered valueless. The essential question for the court in relation to this succession cause is whether given its period it has been litigated as between the beneficiaries, there is a risk of injustice to one or both parties if it grants stay of execution of the Certificate of confirmation.

14. I have taken the liberty to appreciate the facts of this succession cause since it was initiated before the High court way back on 7th March, 2006. It is clear parties have not taken positive steps to comply with the succession Act which sets the timelines on litigation on matters governed by the Act. The normal rule is that upon issuance of the initial grant of letters of administration, the administrator/administrators are under a duty to confirm the grant within six months from the date of issuance of that initial instrument. In the event the administrator or co-administrators fail to do so, he, she or they have to make out a case by evidence which shows special circumstances why they have not complied with the timeframe of six months to file summons for confirmation of grant.

15. The record bears me witness that the administrators have been litigating over and over again, changing legal counsels when a need arises without addressing the subject matter of identifying the free assets of the intestate estate and the beneficiaries to benefit from the aforesaid estate. The best they can hold onto as an order of finality of this court is a certificate of confirmation of grant issued on 26th July, 2022. In terms of the law, that is what one can call impunity and an affront to the administration of justice. The Notice of change and Appointment of the advocates from the record of this case who take over proceedings on behalf of the respective beneficiaries are a threat to Order 9 Rule 9 of the Civil Procedure Rules. Sometimes I wonder if this record is anything to go by, which succession statute or act should be specifically legislated by the National Assembly to take care of the myriad interests of the beneficiaries birthed in Uasin Gishu County. Why do I say so, maybe the purpose of such a legislation might improve the chances of the court being able to do justice to the many pending succession matters before this county.

16. In practice, as things stand now, it is hard to tell or predict what is withholding the beneficiaries of an intestate estate in complying with the provisions of the Succession Act. The jurisdiction of the Probate Court has been diligently exercised and proper Grant of letters of administration issued but the enforcement of it by the administrators remains a pipe dream. The very principles governing the jurisdiction to distribute the intestate estate to the beneficiaries in consonant with Section 29 as read together with section 35,36,37,38,40,41 and 42 are completely ignored and the proceedings left in Limbo pending either the transfer of the session judge or change of legal counsel to file yet another interlocutory application notwithstanding that the subject matter in question is res judicata under Section 7 of the Civil Procedure Act by virtue of the Certificate of Confirmation of Grant. The parties tend to exploit the provisions of Section 76 of the Act on revocation or annulment of the already issued instrument to govern distribution of the estate but that is never the letter or spirit of the statute. Therefore, never is the letter or spirit of the law of Succession to create a provision which defeats the entire objective on identifying the free property of the deceased together with the legitimate beneficiaries and have it distributed within a period of six months. In essence these proceedings filed intergenerationally and ad-infinitum to annul or revoke the Certificate of Confirmation without adherence to the provisions of the Act, is an abuse of the court process.

17. The time limit for the making of the grant of representation and subsequent confirmation of grant is strict, if the reading of the provisions the Succession Act is anything to go by in interpreting it as a whole. It is significant to note that while other statutory provisions which address matters outside succession, every effort is taken to adhere to procedural and substantive justice, one has got to acknowledge that is not the case in Succession disputes. On the basis of these few facts alone, time has come for the legislature to revisit and legislate an amendment touching on the ambiguity in the language as it stands now that a grant issued whether confirmed can be revoked or annulled at any time grounded on the following as specifics of Section 76 of the Act.

18. The nub of the matter is therefore this: First, a party desirous to petition for grant of letters of administration has to go through the necessary protocols provided for in the Succession Act. Second, the petition is forwarded to the government printer for gazettement. Third, upon action by the government printer, a notification or an advert is placed in the relevant notice indicative of a fixed a date of thirty days for any beneficiary, interested. Fourth, if there is an objection raised against the making of the grant of letters of administration, the same according to our performance management understanding measurement must be heard and determined within 90 days fifth, dependent upon the outcome of the subject matter. The appointed administrators shall be at liberty to move with speed to apply the law, to file for summons for confirmation of grant. Sixth, in line with the provisions of the act, it follows that a certificate of confirmation shall be issued to confront the sharing of the estate to the beneficiaries. It will be seen and appreciated therefore that the Certificate of Confirmation of Grant is akin to the final decree on which the probate courts give a definitive order on the cause of action in succession matters. The practical effect of this approach envisaged in the law of Succession Act, is for the court to monitor transmission of the estate in accordance with the Certificate of Confirmation of Grant within six months under Section 83 of the Act and finally call for a probate account as a consequence of which, the administrators duly appointed shall be discharged of any obligations. This unfortunately is never the jurisdiction exercised in our legal system in so far as succession matters as the rules specifically state during the promulgation by the legislature.

19. In respect of overhaul application of the Law of Succession Act, I am convinced that the principles which should guide the courts in deciding whether or not to revoke the confirmed grant or to grant leave to appeal must revolve around an important question of law. The question must be one not merely affecting the rights of busy bodies but rights of particular beneficiaries who must demonstrate compelling and substantial reasons why the issues on notification, consent, non-disclosure, procedural and substantive issues on the administration of the estate were never within their knowledge in a timely manner but came into their possession after 20, 30 or 40 years to require them to raise a claim under Section 76 of the Act. I view the situation before me as framed not qualifying absolutely as a matter which has contributed to the delay of the litigation in this Succession cause. Some of the Succession matters which have been entertained by courts in the various forums from my experience can be better be described as vexatious suits instituted by the beneficiaries suing themselves or against each other with intention of annoying or embarrassing the person against whom they are filed. The proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless to secure or vindicate any rights as known in the Succession Act. One potential pathway is for the Kenyan people through the National Assembly to take remedial action and other measures to propose an amendment to Section 76 of the Succession Act to empower the court to dismiss any applications considered vexatious which delay the final distribution of the property to the legitimate beneficiaries. The approaches to case management by the Deputy Registrars of the respective High Courts must be coordinated from a number of perspectives to oxygenate section 83 (g) of the Law of Succession to facilitate the delivery of the probate accounts by the administrators and thereafter have them discharged within the scope of their appointment. This automatically will act as a barrier for any party instigating other proceedings to a liquidated intestate estate as that would not be appropriate and tenable.

20. On the question of rectification, the Law of Succession Act under Section 74 provides the mechanism for dealing with errors or omissions in grants. From the wording of the said provision and Rule 43 of the Probate and Administration Rules, it is clear that the scope of rectification of grant is limited to correction of errors in the names and description or in setting forth the time and place of the deceased’s death and place of death of the deceased.

21. The court in Re Estate of Joseph Kibera Gituro (Deceased) [2019] eKLR emphasized that rectification is the appropriate remedy where there are clear omissions or errors in a grant. The purpose of rectification is not to re-open the entire distribution but to correct specific errors or omissions while maintaining the integrity of the properly confirmed portions of the grant.

22. Accordingly, I make the following orders:a.The application dated 6th November, 2024 is without merit.b.The respondent shall file a formal application for rectification of the Certificate of Confirmation within 30 days of this ruling, specifically addressing the omitted properties.c.Upon filing of the rectification application, the matter shall be listed for directions within 14 days.

23. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 23RDDAY OF DECEMBER, 2024…………………………………R. NYAKUNDIJUDGEIn the Presence of:Mr. Wainaina Advocate for the Objector