[2022] KEHC 15965 (KLR)

In re Estate of Salim Juma Hakeem Kitendo (Deceased) (Succession Cause 200 of 2015) [2022] KEHC 15965 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15965 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 200 of 2015

JN Onyiego, J

November 11, 2022

IN THE MATTER OF ESTATE OF SALIM JUMA HAKEEM KITENDO (DECEASED)

Between

Rose Faith Mwawasi

1st Petitioner

Judith Malele Mwawasi

2nd Petitioner

and

Fatuma Athman Abud Faraj

Objector

and

Marlin Pownall

Interested Party

Ruling

1. Vide the judgment delivered in this case on March 25, 2022, the court pronounced itself as follows;“Having held as above, I am inclined to make the following declarations and orders;1. That it is hereby declared and ordered that the objector and the first petitioner are widows of the deceased and therefore beneficiaries entitled to a share of the estate in accordance with Islamic sharia law2. That the interested party’s marriage to the deceased is null and void for lack of capacity to get married to the deceased hence not a widow to the deceased and therefore not a beneficiary.3. The children of the objector known as ASJM (son), ASJM (son), BSJM (son) and MSJM (daughter) being children born within wedlock are heirs hence beneficiaries to the estate entitled to a share in accordance with the Islamic sharia law .4. The child known as SSJH Kitendo is not a beneficiary of the estate herein as he is not a recognized heir nor was he a dependant5. The fate of the three children sired by the 1st petitioner and the interested party whose paternity is in dispute shall be subjected to a DNA test after extracting samples from their bodies and compared with those extracted from the bodies of at least two of the objector’s children whose paternity is not in dispute6. For avoidance of doubt, the children to be subjected to DNAtest are Hakeem SJHK (child to the interested party), LSK, TSK and HK (children of the 1st petitioner)7. Properties comprising the estate and subject to distribution in accordance to Islamic sharia law includea.Apt 5 Block A on LR No 209/20045b.LR No 8436 original No 5939/10/I/MNc.Kwale/Ukunda/3729d.4 houses on Kwale/Ukunda/3 729e.Kwale/Ukunda on Plot 3729 Blue Jay gas stationf.Kwale/Ukunda Plot 3673 and 2 houses Diani Msikitinig.1 house on Plot 3673h.Plot No 12/III/MN Mtwapa Kilifi County together with kerosene tanki.14N/111/2349 3 housesj.Lorry Mitsubishi Fuso K* Sk.Toyota K* Hl.Cash and Carry Supplies business on Plot No 12/III/MN Mtwapa.m.Barclays account No 2****9 under Blue lay gas stationn.Barclays account 2****9(3047 local business account.o.Barclays current account 2*****51p.First Community account 8****7q.DTB 01 Blue gas station account No 0*****9 Blue jay gas stationr.Imperial bank account 7*****4 for Salim and Son Investment account.s.KCB account 1*****8 Salim Juma Mwakitendex.Cooperative bank account 0********4 Executive current account8. Parties to agree on which of the two children of the objector will donate DNA samples for examination before a mutually agreed laboratory9. Grant of letters of administration intestate made in favour of the objector, 1st petitioner and the interested party jointly and later to the public trustee is confirmed and a fresh grant do issue to the first petitioner and objector jointly.10. Parties to pursue the claim over ownership dispute in respect of plot numbers Kwale/Diani SS/2539 and 2274 before ELC11. This being a family matter each party to bear own costs 12. Mention on May 3, 2022 for confirmation on compliance with order (8) above and further directions.

2. Dissatisfied with the said judgment, the objector filed an application dated April 11, 2022, seeking review of the same and the consequent orders thereof. However, the said application was by consent withdrawn on May 11, 2022. Besides the said review application, the objector did file another application dated April 26, 2022 seeking an order staying further proceedings herein pending hearing and determination of the application interpartes and subsequently, pending hearing and determination of the intended appeal. Further, that the court does grant leave to appeal against the said “ruling”.

3. The application is based upon grounds stated on the face of it and further amplified by the content of the affidavit in support sworn by the applicant on April 26, 2022. It is the objector/ applicant’s averment that in compliance with the court order, she did write to the government chemist analyst’s office Mombasa requesting to submit her children for sibling DNA examination but she was informed that it was not possible to determine paternity through analysis of sibling DNA extracted samples.

4. She averred that having preferred an appeal against the impugned judgment, she is entitled to a hearing pursuant to article 50 of the Constitution. That the appeal has high chances of success hence the same will be rendered nugatory if execution is carried out.

5. In response, the petitioner filed grounds of opposition dated May 5, 2022 stating that; the application as drawn does not meet the threshold under order 42 rule 6 of the CPRS; the applicant having filed an application for review could not again apply for stay of execution pending hearing and determination of a pending appeal; application as drawn is confusing as it is referring to an intended appeal yet there is an appeal already filed and scheduled for case management on June 7, 2022; there is no order in place capable of execution and; what the objector is challenging is a judgment and not a ruling as indicated in the application.

6. Parties agreed to dispose of the matter through written submissions. The objector filed her submissions on May 24, 2022 reiterating the content in her affidavit in support. She contended that she has the right to pursue her legal rights before the court of appeal. She further contended that mere reference of the impugned judgment as a ruling is a technicality which is curable. To support her contention, the court was referred to the case of Bosire Ogero v Royal Media services (2015) e KLR where it was held that a court has wide discretionary powers to allow amendment of pleadings.

7. She further stated that she had established the grounds for stay of execution under order 45 rule 6 of the CivilProcedure Rules in that she will suffer substantial loss if the execution process is undertaken and estate distributed to undeserving persons before the appeal is heard and determined.

8. On their part, the petitioners filed their submissions on May 30, 2022, through the firm of Munyithya and company advocates thus stating that the applicant had not met the three elements for stay of execution under order 42 rule 6 of the CPRS. Counsel referred to the holding in the case of Kenya Shell Ltd vs Karuga Kibiru (1986) KLR where the court held that a party seeking stay must prove that; he is likely to suffer substantial loss ; the application has been filed without undue delay and; the applicant is willing to deposit security for due execution of the decree.

9. Counsel further submitted that the application is not merited as there is already an appeal in place hence the issue of the intended appeal does not arise. That there is no proof of substantial loss likely to arise before the appeal is heard and determined.

10. I have considered the application herein, response thereto and submissions by both parties. The only issue that emerges for determination before me is whether the applicant has met the criteria for grant of the orders sought. To start with, I wish to address the issue of leave to appeal against the impugned judgment. Order 42 rule 6 sub-rule 4 of the Civil Procedure Rules does provide that “for purposes of this rule, an appeal to the court of appeal shall be deemed to have been filed when under the rules of that court a notice of appeal has been given”.

11. In the instant case, notice of appeal has been filed and in the petitioner’s submission, the appeal before the court of appeal is already set for case management on June 7, 2022 a fact that the objector/ applicant did not rebut nor deny. I am alive to the fact that the applicant has a right of appeal and did not need leave to appeal. Considering that there is already an appeal filed which is not denied, the same is no longer intended but already in place hence that prayer is spent.

12. Regarding the question whether this court can stay further proceedings, it is incumbent upon the applicant to establish that she is likely to suffer substantial loss if the orders are not granted; that the application has been filed timeously; the intended appeal is arguable with high chances of success. I must however note that, to grant or not to grant an order for stay is a question of discretion which must be balanced between the competing interests in the administration of justice.

13. In the case of Re Global Tours & Travel Ltd HCWC No 43 of 2000 Ringera, J (as he then was) held that:“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

14. Similar position was held in the case ofKenya Wildlife Service v James Mutembei [2019] eKLR where the court held that: -“…Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceedings is high and stringent…”

15. From the prayers sought, the applicant is strictly arguing grounds for stay of execution yet the prayer before court is stay of proceedings. This matter has been heard to conclusion save for an order for DNA to be done to eliminate any doubt over paternity of the disputed children. The applicant has indicated that she had written to the government chemist analyst seeking DNA examination. With this action in place, there is nothing to stay as that is the only item remaining to conclude the process. In my view, the appeal filed herein or intended to be filed is a bit premature. To me, the applicant is trying to appeal in piecemeal. She should have waited for the final orders to be pronounced and then file the appeal at once. While the process for DNA is pending, no execution was likely to take place.

16. Accordingly, the applicant has not proved that she is likely to suffer any substantial loss if proceedings are not stayed. The court would like to confirm whether it was the government chemist analyst who has delayed the process on DNA examination or not. For the above reasons stated, the issue of the applicant likely to suffer substantial loss is far-fetched.

17. As to whether the application was filed in time, the impugned judgment was delivered on March 25, 2022 and the application herein filed on April 26, 2022. In my view, the application was filed within reasonable time. Concerning arguability of the appeal, it is for the appellate court to determine. In a nutshell, I do not find any sufficient ground to stay further proceedings in this case as doing so will further and unnecessarily delay this matter. To that extent, the application herein is dismissed with no order as to costs.

18. Since there is a pending application seeking implementation of the judgment, this matter will be mentioned on December 1, 2022 for further directions.

DATED, SIGNED AND DELIVERED VIRTUALLY ON THE 11THDAY OF NOVEMBER 2022. ........................J. N. ONYIEGOJUDGE