[2023] KEHC 26106 (KLR)

In re Estate of Nyoro Julia Nguhi Wanjiru (Deceased) (Succession Cause 1781 of 2013) [2023] KEHC 26106 (KLR) (Family) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26106 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1781 of 2013

MA Odero, J

December 1, 2023

IN THE MATTER OF THE ESTATE OF NYORO JULIA NGUHI WANJIRU (DECEASED

Between

Virginia Gathoni Mwangi

Petitioner

and

Humphrey Muhako Efetha

1st Objector

Daniel Mwaura Ndungu & 3 others

2nd Objector

Ruling

1. Before this Court for determination is the Notice of Motion dated 21st November 2021 by which the Applicant Humprey Muhako Efetha seeks the following orders:-“1. Spent.2. Spent.3. The Honourable Court be pleased to grant a stay of further proceedings herein pending the hearing and determination of the intended appeal.4. Costs of this application be provided for.”

2. The application which was premised upon Section 47 and 73 of the law of Succession Act Cap 160, laws of Kenya and all enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant.

3. The Petitioner Virginia Gathoni Mwangi opposed the application through her Replying Affidavit dated 31st December 2021 and Further Affidavit of the same date.

4. The matter was canvassed by way of written submissions. The Applicant filed written submissions dated 8th May 2023 whilst the Petitioner relied upon her written submissions dated 4th May 2023.

Background 5. This Succession Cause relates to the estate of the late Nyoro Julia Nguhi Wanjiru (hereinafter the Deceased) who died on 27th May 2013 at the St. Margaret’s Hospice in Glasgow Scotland. A copy of the certificate of Death Serial No. 0898 is annexed to the Petition for Grant of Probate with written Will.

6. Following the demise of the Deceased the Petitioner Virginia Gathoni Mwangi applied for a Grant of Probate. The Objector Humphrey Muhako Efetha and the 2nd Objectors Daniel Mwaura Ndung’u & 3 others objected to the issuance of Grant to the Petitioner.

7. The dispute was heard interpartes and on 15th May 2019 Hon. Lady Justice Achode (as she then was) delivered a judgement in which she made the following orders:-“a)The Will dated 21st May 2013 is the valid last Will and testament of the late Nyoro Julia Nguhi Wanjiru.b)The Will dated 31st March 2013 is declared to be invalid Will of the late Nyoro Julia Nguhi Wanjiru and is therefore a nullity.c)The application for sealing of grant issued on the strength of the Will dated 31st March 2013 lacks merit and is therefore denied.d)The 2nd Objectors have failed to prove dependency and are therefore not entitled to a reasonable provision out of the deceased’s estate.e)The estate of the late Nyoro Julia Nguhi Wanjiru shall be distributed in accordance with her valid last Will and testament dated 21st May 2013. ”

8. Being aggrieved by the above judgement the 1st Objector filed a Notice of Appeal dated 20th May 2019 which Notice was filed in court on 29th May 2019. The 1st Objector also filed in the High Court this application dated 15th May 2019 seeking to stay the execution of the judgement pending the hearing and determination of his appeal.

9. As stated earlier the Petitioner strenuously opposed this application for stay.

Analysis and Determination 10. I have carefully considered the application before this court, the replies filed thereto as well as the written submissions filed by both parties.

11. Order 42 Rule 6(2) of the Civil Procedure Rules provides the guiding principles which one must satisfy before the court can grant order of stay of execution as follows:-“No order for stay of execution shall be made under sub-rule (1) Unless-(a)The court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay;and(b)Such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given by the Applicant”.

12. The impugned judgement was delivered on 15th May 2019. This application for stay was filed on 29th May 2019 barely two (2) weeks after the said judgement was delivered. I am satisfied that the application was filed in a timeous manner.

13. It is not the duty of this court to determine the merit or otherwise of the intended appeal. All that the Applicant is required to show is that he has an arguable appeal.

14. This is a matter which has been highly contested at each stage. There are two Wills produced by the Petitioner and the Applicant respectively and each claims that the Will which they have produced is the last valid Will of the Deceased. In as much as the High court has made a determination on that issue the Applicant as is his right seeks to challenge that decision in the Court of Appeal.

15. I find that if the stay prayed for is not granted then the Applicants appeal may well end up being a mere academic exercise as the Petitioner will have moved to confirm the grant and to distribute the estate in line with the judgement delivered on 15th May 2019.

16. In the case of Kithumbu Nyaga Elijah (Deceased) [2020] eKLR which similarly involved the question of granting stay pending appeal in a succession mater the court held as follows:“However, and the above notwithstanding this court has a duty to protect the estate of the deceased awaiting distribution now that there is an appeal pending before the Court of Appeal, It is my view that the order to the effect that the administrators jointly or separately do file for confirmation will not serve the interests of justice. I have looked at the application for confirmation of grant pending before the lower court and I notice that the same has introduced new beneficiaries. The two applicants in the application for confirmation of grant pending before the lower court have applied for confirmation in exclusion of the 1st applicant herein. The Court of Appeal being the superior court to this court and the lower court ought to determine on the mode of distribution in finality. By the fact that the decision of the Court of Appeal shall be binding on the lower court (and even this court) it is in the interest of justice and prudent use of judicial time that the appeal be heard first. The estate can only be distributed in the mode which will be upheld by the Court of Appeal. As such, it will be a waste of the lower court’s judicial time to proceed and hear the application for confirmation of grant pending before it. In the circumstances, this court ought to stay the execution of the orders No. 4 of the orders made on 24th July 2019 pending the hearing and determination of the appeal in Nyeri CA No. 16 of 2020. In so doing, the court ought to issue an order of stay of hearing of the summons dated 25th February 2020 in Runyenjes PM Succession Cause No. 227 of 2011 pending the hearing and determination of the appeal in Nyeri CA No. 16 of 2020. ” [own emphasis]

17. Borrowing from the above, I find that the application dated 21st November, 2021 is merited. As such, I am inclined to stay the proceedings of the summons for confirmation of grant dated 20th April, 2021 pending the hearing and determination of the appeal filed in Civil Appeal Number E770 Of 2021: Humphrey Muhako Efetha Vs. Virginia Gahtoni Mwangi & 4others.

18. Based on the foregoing I do find merit in the application dated 21st November 2021. I hereby grant a stay of any further proceedings in this Succession Cause pending the hearing and determination of the Applicant’s Appeal. The said appeal is to be prepared and filed within Sixty (60) days failing which the stay orders will lapse automatically with no further reference to the Applicant. This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 1ST DAY OF DECEMBER, 2023. MAUREEN A. ODEROJUDGE