[2024] KEHC 16277 (KLR)

In re Estate of Richard Kigondu Kigera (Deceased) (Succession Cause 192 of 2013 & 114 of 2022 (Consolidated)) [2024] KEHC 16277 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16277 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 192 of 2013 & 114 of 2022 (Consolidated)

LM Njuguna, J

December 19, 2024

Between

Ambrose Njiru Nthiga

Applicant

and

Abraham Njue Richard

Petitioner

Ruling

1. For determination is the summons dated 30th September 2024 through which the applicants seek the following orders:1. Spent;2. That the court be pleased to issue an order of stay of execution and/or implementation of the judgment/ decree dated 18th September 2024 pending hearing and determination of the application herein interparties;3. That the court be pleased to issue an order of stay of execution and/or implementation of the judgment/ decree dated 18th September 2024 pending hearing and determination of the intended appeal before the Court of Appeal;4. That leave be granted to the applicant to file an appeal to the court of appeal against the judgment/decree of this court delivered on 18th September 2024; and5. The costs of this application be provided for.

2. The applicant is dissatisfied by the judgment of the court delivered on 18th September 2024 and he wishes to challenge the decision before the Court of Appeal. Since the appeal is not as of right, he seeks an order for leave to appeal. He also seeks stay of execution which, if not granted, the subject matter will be extinguished as the properties will be adversely alienated and he stands to be evicted.

3. The respondent filed grounds of opposition stating that the jurisdiction of this court is fully spent and that the prayers sought are not anchored on any provision under the Law of Succession Act.

4. The applicant filed his written submissions stating that section 50 of the Law of Succession Act demands that the applicant files an appeal at the Court of Appeal with leave of the court. He relied on the case of Obange & Another v. Oganyo & 4 Others (2022) KEHC 14401 (KLR). That if stay of execution is not granted, the subject matter will be alienated thus rendering the appeal a nullity and he relied on the case of Re Estate of Richard Churko Stephen Guyo (deceased) (2021) eKLR.

5. The issue for determination is whether the application has merit.

6. In my view, the only issue for determination is whether the application herein has merit.

7. Applications for stay of execution are governed by Order 42 rule 6(2) of the Civil Procedure Rules which provides:“No order for stay of execution shall be made under subrule (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 order as may ultimately be binding on him has been given by the applicant.”

8. Stay of execution may be granted where the court is satisfied that substantial loss will result if the order is not granted, the application has been brought without delay. The judgment was delivered on 18th September and the application is dated 29th October. The case is one of succession thus there is no need for provision of security. Even though the respondent has argued that the court has become functus officio, the issue of stay may be determined by this court in light of the relevant provisions of the Civil Procedure Rules which are applicable in succession causes. Given the nature of the case, and the judgment being challenged, it would be a waste to deny the orders since the subject matter will be extinguished for purposes of the appeal.

9. The other issue of leave to appeal to the Court of Appeal. Under the Law of Succession Act, there is no express provision on appeals to the court of appeal meaning that, appeal of succession causes to the Court of appeal is not as of right. Section 50(1) of the Law of Succession Act does not provide for appeals from the high court to the Court of appeal but it states that appeals to the high court from magistrates’ courts shall be final. It is silent on cases where the high court was the court of original jurisdiction.

10. Rules 49 and 73 of the Probate & Administration Rules under which this application has been filed, empower the court to make any orders in furtherance of justice even where an application is not provided for by the succession law. Such orders may be made on the strength of the court’s discretion. This is also provided for under section 47 of the Law of Succession Act. As rightly stated by the applicant, there is no appeal to the Court of Appeal as of right under section 50 of the law of Succession Act.

11. However, with the leave of court, granted through discretion as abovementioned, an appeal may lie to the Court of Appeal from the decision of the High Court exercising its original jurisdiction. In the case of Rhoda Wairimu Karanja & Another v. Mary Wangui Karanja & Another (2014) eKLR (supra) the court made the following observations with regards to appeals in succession matters against the decisions of the High Court exercising its original jurisdiction:“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 merits serious consideration. We think this is good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes.”

12. Therefore, the application has merit. Prayers (3), (4) and (5) of the application are granted as prayed.

13. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19THDAY OF DECEMBER, 2024. L. NJUGUNA**JUDGE*……………………….………………………...……….……………......…… for the Applicant……………………….…..…..……………………………….………....…… for the Petitioner