[2022] KEHC 1608 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE NO. 277 OF 2001

IN THE MATTER OF THE ESTATE OF SALINA CHEBOLEM (DECEASED)

THROUGH

EVALINE CHEMELI TUWEI…………..……PETITIONER/APPLICANT

VERSUS

FLORENTINA JEPKUTWO KOGO………..OBJECTOR/RESPONDENT

RULING

Background

1. Vide an application dated the 2nd of September 2021, the petitioner/applicant moved this court seeking the following orders:

1. Spent

2. Spent

3. THAT this Honourable Court be pleased to Order that there be a stay of execution and or implementation of the Judgement/Decree dated 9th August 2021 and/or grant an order barring and inhibiting registration/issuance of the Certificate of Confirmation of Grant, pending the hearing and determination of the intended appeal.

4. THAT leave be granted to the Petitioner to file an Appeal to the Court of Appeal of Kenya against the Judgement/Decree of this Court dated 9th August 2021.

5. THAT Costs of the Application be in the cause.

2. The application was supported by the affidavit of the petitioner/applicant of even date and a further affidavit sworn on the 3rd of December 2021 wherein she deponed that she is the administrator of the Estate of Salina Chebolem having been issued with grant of Letters of Administration Intestate on the 8th of August 2002. She deponed further that having being dissatisfied with part of the Judgement delivered on the 9th of August 2021, she intends to appeal against the said judgement and has already filed a Notice of Appeal. The petitioner stands to suffer substantial loss and damages, should the orders sought not be granted.

3. The respondent/objector opposed the application through her replying affidavit sworn on the 10th of November 2021. In particular, the respondent averred that there are no serious grounds or questions of law that would warrant judicial consideration by the Court of Appeal. The respondent was of the view that the petitioner/applicant has not demonstrated the exact loss that she stands to suffer should the order not be granted, and urged court to dismiss the application.

4. By direction of court, the application was canvassed through written submissions

Determination

5. Having carefully considered the application, the parties pleadings and the submissions of counsel, it is my finding that two issues arise for determination namely; whether the Petitioner should be granted leave to appeal to the Court of Appeal; and secondly, whether the petitioner has met the threshold for grant of the stay order sought.

a. Whether the Petitioner should be granted leave to appeal

6. The petitioner primarily seeks leave to appeal to the Court of Appeal in order to have the estate redistributed and exclude one Cleophas Kiplangat as a beneficiary of the estate of the late Salina Chebolem.

7. It is trite law that in succession matters, an aggrieved party requires leave of the High Court to file an appeal in the Court of Appeal. This is because the right of appeal is not automatically given in the statute. A look at Section 50 of the Law of Succession Act shows that it does not provide for an appeal against the original decision of the High Court sitting as a Probate Court. In particular, section 50 provides;

(1) An appeal shall lie to the High Court in respect of any order or decree made by a resident magistrate in respect of any estate and the decision of the High Court thereon shall be final.

(2) An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased muslim and with prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.

8. A wholesome reading therefor of the above provision together with the Probate and Administration Rulesreveals that there is no provision for a right of appeal against the decision of the High Court exercising original jurisdiction in matters of Probate and Administration

9. This position was well articulated by the Court of Appeal in Rhoda Wairimu Karanja & another vs. Mary Wangui Karanja & another [2014] eKLR,where the Court while deliberating on the import of Section 50 opined thus:

“But section 47 of the Law of Succession Act makes no mention of an appeal to the Court of Appeal from the decision of the High Court made in the exercise of the latter’s original jurisdiction. Decisions on this point have been varied both in the High Court and in this Court. The holding in the leading case of Makhangu vs. Kibwana []1996-1998] 1 EA 168 (Cockar, CJ, Kwach and Shah, JJ.A), which has been cited invariably in almost all the subsequent decisions is to the effect that an appeal does lie to the Court of Appeal from the decision of the High Court in probate matters; that under section 47 of the Law of Succession Act, the High Court has jurisdiction on hearing a matter to pronounce decrees or orders; that any order or decree made under this section is appealable under section 66 of the Civil Procedure Act, either as a matter of right if it falls within the ambit of section 75 of the Civil Procedure Rules or by leave of the Court if it did not. It has been said in criticism of this decision that the Law of Succession Act is a complete code with its own rules and that there would be no justification to import into it provisions of the Civil Procedure Act and Rules unless expressly permitted under Rule 63 of the Probate and Administration Rules.

In short, and speaking generally, the practice alluded to by their Lordships in the above passage, is that where there is no automatic right of appeal an aggrieved party wishing to appeal must seek leave to do so and the granting of leave is a discretionary power.

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 merit serious judicial consideration. We think this is a good practice that ought to be retained in order to promote finality and expedition in the determination of the probate and administration dispute.

So what is our decision in this application…leave of the High Court to appeal to this Court in succession matters is necessary in the former’s exercise of its original jurisdiction.” (emphasis mine).

10. The above position was reiterated by the Court of Appeal in John Mwita Murimi & 2 others vs. Mwikabe Chacha Mwita & another [2019] eKLRwherein the stated:

“It is not in dispute that the impugned ruling in this matter arises from a succession cause and the respondents did not obtain leave to appeal. The decision in Makhangu-v-Kibwana [1996] EA cited by the respondent was succinctly considered by this Court in Rhoda Wairimu Karanja & another -v- Mary Wangui Karanja & another [2014] eKLR. In analyzing the Makhangu decision (supra), this Court held 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 it is refused, with leave of this Court. (See also in Re Estate of Mbiyu Koinange (Deceased) [2015] eKLR; HCC Succession Cause No. 527 of 1981).”

11. From the foregoing, it emerges that it is a requirement to seek leave to appeal decisions of the High Court exercising original jurisdiction in succession matters, and failure to obtain such leave is fatal, as it would lead to the striking out of the record of appeal.

12. In the instant case, the decision which the Protestors/Applicants intend to appeal against arises out of a succession cause, and the judgment in the cause was delivered by the High Court exercising its original jurisdiction. It is therefore a requirement that the Petitioner/Applicant seek leave to appeal before filing her intended appeal. Additionally, the application for leave would grant the Court an opportunity to determine whether there are grounds which may require consideration by the Court of Appeal.

13. In addition, I take cognizance of the fact that the right of appeal is an integral part of access to justice and the foundations of what we call a fair and impartial judicial process. To deny one the right to appeal is akin to denying them an opportunity to have their issues ventilated and determined by and large ensuring that the ends of justice are met. Even so, a party seeking leave to appeal must show that they have an arguable appeal.

14. In the instant case, the petitioner/applicant has attached a draft memorandum of appeal dated the 28th of November 2021 listing 4 grounds of appeal. In particular, her contention seems to be the inclusion of one Cleophas Kiplagat as a beneficiary of the estate of the deceased. Her claim is that the said Cleophas is a stranger to the estate of the deceased and has no claim whatsoever over the estate of the deceased. She faults the court for failing to appreciate Section 29(a) of the Law of Succession Act.

15. Looking at the grounds and the facts of the case, it is my finding that the case presents an arguable appeal. It is not a must that the appeal succeeds. What suffices is that the appeal is arguable.

16. In this regard, and taking into consideration the provisions of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules which grants this court the inherent powers and jurisdiction to entertain any application and make any orders necessary for the ends of justice to be met, it is my finding that the leave sought ought to be granted and which this court hereby grants.

b. Whether the petitioner/applicant has met the threshold for grant of stay

17. Considering that the Law of Succession Act is sui generis – that is - a self-sufficient Act with its own substantive law and rules of procedure as was held in Josephine Wambui vs Margaret Wanjiru Kamau & Another [2013] eKLR, the provisions of Order 42 Rule 6 of the Civil Procedure Rules, which were consciously omitted in Rule 63 of the Probate and Administration Rules, remain inapplicable in succession causes and are inapplicable to the instant application.

18. Therefore, the instant application ought to be looked at from the prism of Section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules. In particular, Section 47 of the Law of Succession Act stipulates:

“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient…”

19. On the other hand, Rule 73 of the Probate and Administration Rules provide as follows:

“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

20. As a result, the only issue for court’s consideration is whether a sound and justifiable reason/basis exists to warrant the issuance of the stay of execution of the judgement dated 9th August 2021.

21. In the present case, I note that the applicant has already filed a notice of appeal and submitted to court a draft memorandum of appeal indicating her dissatisfaction with the decision of court delivered on the 9th of August 2021. In particular and as noted above in this ruling, the applicant basically seeks redistribution of property to exclude one Cleophas Kiplangat from the list of beneficiaries at the Court of Appeal.

22. In this regard, I am guided by the decision taken in Banco Arabe vs Bank of Uganda [1999] 1 EA 22 as cited in In the Matter of the Estate of Daudi Kipserem Serem (deceased) [2021]wherein the court held:

“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered.”

23. In the circumstances, it is my finding that the petitioner is entitled to an opportunity to ventilate her grievances on appeal to her satisfaction. In any case, the petitioner did submit that she is willing to offer security for the due performance of the decree/order as a demonstration of her commitment towards the intended appeal. On the other hand, the respondent submitted that the cause has spanned close to two decades in court and in the circumstance that the court is satisfied to allow the applicant’s application, the court should allow the objector/respondent’s family to utilize the awarded land portions as per the judgement of 9th August 2021.

24. Accordingly, having weighed the competing interests of the parties, I am satisfied that there is sufficient cause for granting stay of execution pending the hearing and determination of the intended appeal. Consequently, the application dated 2nd September 2021 is hereby allowed and orders granted as hereunder:

a. That the petitioner/applicant is hereby granted leave to file appeal to the Court of Appeal

b. That stay of execution be and is hereby granted pending the hearing and determination of the applicant’s appeal from the Judgement and Decree of this court dated the 9th of August 2021, on condition that the respondent/respondent’s family be forthwith allowed free access, occupation and utilization/use of the 4. 5 acres as awarded in the Judgment of 9th August 2021.

c. That the costs of the application shall be costs in the cause.

Dated, signed and delivered at Eldoret on this 10th March 2022.

E.K. OGOLA

JUDGE