[2020] KEHC 1344 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE NO. 175 OF 2003

IN THE MATTER OF THE ESTATE OF SAMUEL THUKU KIARIE (DECEASED)

AND

IN THE MATTER OF AN APPLICATION FOR THE REVOCATION AND/OR ANNULMENT OF GRANT

BETWEEN

JAMES MWAURA THUKU.......................................................PETITIONER

AND

MARGARET NDUTA NDIRANGU......................................1ST OBJECTOR

PRISCILLA WANJIKU THUKU.........................................2ND OBJECTOR

MARY WANGARI THUKU................................................3RD OBJECTOR

VERSUS

FLORENCE WAITHIRA MWAURA................................RESPONDENT

RULING

[1]Before the Court for determination are two applications filed by the respondent herein and the interested parties. The 1st application is the Summons dated 17 June 2020. It was filed pursuant to Articles 47, 50 and 159 of the Constitution of Kenya, Section 47 of the Law of Succession Act, Chapter 160 of the Laws of Kenya, and Rules 49, 63 and 73 of the Probate and Administration Rules by the firm of M/s Nyairo & Company Advocateson behalf of the Respondent, Florence Waithira Mwaura. She thereby seeks the following orders:

[a] Spent

[b] Spent

[c] Spent

[d] That there be stay of execution of the Orders issued on 30 April 2020 pending the hearing and determination of the appeal to the Court of Appeal.

[e] That there be stay of proceedings and/or further proceedings and/or any action in this matter pending the hearing and determination of the appeal to the Court of Appeal.

[f] That the costs of the application be provided for.

[2] The application was premised on the grounds that pursuant to the application dated 26 November 2018, the Court delivered its ruling on 30 April 2020 by which it revoked the Grant of Letters of Administration issued herein on account of the death of James Mwaura Thuku, the sole administrator of the estate of Samuel Thuku Kiarie (the deceased). She further averred that at the time the grant was revoked, the estate of Samuel Thuku Kiarie had already been fully distributed and the two properties that were the subject of objection proceedings had been transferred to James Mwaura Thuku as the beneficiary. She added that the said James Mwaura Thuku had in turn sold the property and effected transfer thereof to third parties who have since taken possession and developed the land substantially.

[3] Consequently, the respondent, as the widow and administrator of the estate of James Mwaura Thuku, is aggrieved by the ruling of the Court dated 30 April 2020 and has preferred an appeal therefrom to the Court of Appeal. In her view, her appeal has high chances of success and therefore ought to be heard and determined before any further steps can be taken herein. The Respondent expressed apprehension that she stands to suffer substantial loss should the orders sought not be granted, given that she is exposed to potential suits by the third parties who had purchased the suit property from her deceased husband. She also pointed out that she is willing to abide by any condition that the Court may impose; and that her application has been filed in good faith.

[4]The grounds aforementioned were expounded on by the respondent in her affidavit sworn on 16 June 2020, to which the she annexed copies of the Certificates of Search for the two properties, some of the agreements between James Mwaura Thuku and some of the purchasers, as well as a copy of the Notice of Appeal dated 5 May 2020. The respondent further averred that if the Objectors are allowed to proceed to execute and give effect to the orders made on 30 April 2020, she will suffer immense prejudice since the effect of the orders would automatically disinherit her and expose her to suits by the purchasers.

[5] The respondent’s application was resisted by the Objectors vide their Replying Affidavit sworn by the 1st Respondent, Margaret Nduta Ndirangu, on 26 June 2020. She adverted to their common position that their brother, James Mwaura Thuku, obtained Grant of Letters of Administration herein fraudulently; and that the said Grant has already been revoked by the Court vide its ruling dated 30 April 2020. She further averred that they thereafter promptly filed an application for fresh grant, dated 18 May 2020; which application is pending hearing and determination. It was therefore the averment of the Objectors that to grant the orders sought by the Respondent would further expose the estate to dissipation. Thus, they prayed for the dismissal of the application dated 17 June 2020 with costs.

[6]The 2nd application was filed by some 48 applicants pursuant to Section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules; seeking in the main, that the Court be pleased to review its ruling dated 30 April 2020; and that the Court be pleased to hold and find that, much as the Grant of Letters of Administration herein stands revoked for being inoperative on account of the holder’s demise, anything done and executed pursuant to and in reliance on the said Grant by the applicants remains legal and valid. The applicants also asked that the Court be pleased to issue orders restraining the respondents by themselves, their servants or agents from in any way interfering with the applicant’s peaceful occupation and enjoyment of parcels bought by them from James Mwaura Thuku.

[7] In the Supporting Affidavit filed with the 2nd application, Samuel Kinuthia Karanjaand Mary Njeri Mwaura averred, on their own behalf and on behalf of the 48 applicants, that James Mwaura Thuku was the registered proprietor of Land Parcel Number I.R 57123orI.R 1557/167 situated south east of Naivasha Town; and that James Mwaura Thuku subdivided the property into 94 plots, some of which he sold to the applicants and gave each of them vacant possession thereof before his demise on 24 December 2017. They further averred that they were shocked to learn that by a ruling dated 30 April 2020, the Court revoked the Grant issued to James Mwaura Thuku, thereby exposing them to the risk of loss of their properties, which they have developed at great expense.

[8] The applicants further averred that, in their understanding, the effect of the ruling of 30 April 2020 was a declaration that they have no right to their respective portions of the suit property. Hence, they are aggrieved that adverse orders were made against their interest without affording them the right to be heard. They annexed to the Supporting Affidavit a copy of the title in the name of James Mwaura Thuku, copies of the land sale agreements between the deceased, James Mwaura Thuku and the applicants, as well as photographs showing the developments on the subject property, among other documents, in proof of their assertions and prayed that the orders sought by them be granted in the interest of justice.

[9] In response to the application dated 20 July 2020, the Objectors filed a Notice of Preliminary Objection dated 12 August 2020 contending that:

[a]this Court lacks jurisdiction to entertain the application as it became functus officio after an appeal was filed from its decision;

[b] This Court lacks jurisdiction to entertain the instant application since the issues raised are the preserve of the Environment and Land Court, as they touch on ownership and right to use land;

[c] The Grant to James Mwaura Thuku on whose strength he purportedly sold the subject property was revoked by this Court and the only recourse available in law to the applicants, if at all, is as against the said personal representative of the deceased as an individual; and not against the estate.

[d] The applicant’s application is bad in law, incompetent, and an abuse of the process of the Court;

[e] The application as drawn and filed is res judicata;

[f] The application is anchored on provisions of the law which do not donate any power to this Court to interfere with its ruling of 30 April 2020; thus making the instant application fatally defective;

[g] The application has no merit and is thus incurably defective and should be dismissed and/or struck out in the first instance, since no leave of the Court has been sought for the applicants to be enjoined into this matter as required by the law;

[h] The applicants have approached the Court with unclean hands in that they are guilty of material non-disclosure; and are thus undeserving of the orders sought.

[10] The Objectors also filed a Replying Affidavit, sworn by them on 12 August 2020, in which they reiterated the grounds set out in their Notice of Preliminary Objection. They averred that the application elicits nothing new; and is but a futile attempt by the applications to delay the expedient determination of the matter. They restated that the only recourse for the applicants is to pursue the personal representative of the vendor, who is the respondent herein.

[11] Given the nature of the orders sought in the two applications, directions were given herein that the two applications be canvassed by way of written submissions and that a ruling to be given in respect of both. Thus, it is only fitting that the application dated 20 July 2020 (hereinafter “the 2nd application) be disposed of first, for one of the orders sought is the review and setting aside of the ruling dated 30 April 2020 in respect of which the respondent seeks an order for stay of execution. Secondly, and more importantly, a Notice of Preliminary Objection was filed in response to the 2nd application; and by its very nature, that Preliminary Objection has the potential of disposing of the key issues pertaining to the two applications.

[12] Thus, starting with the Preliminary Objection raised to the 2nd application by the Objectors, it is imperative to ascertain whether the grounds set out in the Notice of Preliminary Objection dated 12 August 2020 fall within the definition coined for the purposes in Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors [1969] EA 696, wherein it was held thus:

"... a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."

[13]Moreover, in the said case of Mukisa Biscuits Manufacturing Co. Ltd Case, Sir Charles Newbold, P. added that:

"...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion..."

[14] The same position was reiterated by Hon. Ojwang, J. (as he then was) in Oraro vs. Mbaja [2005] 1 KLR 141, thus:

"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed... Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."

[15]Thus looking at the 8 grounds set out in the Objectors’ Notice of Preliminary Objection, the only valid grounds for the Court’s consideration as preliminary points are:

[a] Whether or not the Court is funtus officio;

[b] Whether the 2nd application is res judicata;

[c] Whether a review is tenable where, as is the case herein, an appeal has in fact been filed; and,

[c]Whether the Court has jurisdiction to entertain the application in so far as it concerns the right to own and occupy land.

[16] In the case of Dickson Muricho Muriuki vs. Timothy Kagondu Muriuki and 6 Others[2013] eKLR, the Court of Appeal had occasion to consider the circumstances when the court would be deemed to be functus officio. It rendered itself thus:

"...it is profitable to note that the concept of functus officio should not be confused with the doctrine of res judicata although both have an element of prohibition of exercise of authority over the subject of the suit. The former prohibits exercise of authority by any court in the same suit the court has determined completely, while the latter relates to a situation where there are two suits; a current suit and another previous; ...whereas the court becomes functus officiowhen it has exercised its authority over a matter and has completely determined the real issues in controversy, nevertheless, care should be taken not to inadvertently overstretch the application of the concept of functus officio...Therefore, in determining whether the court is functus officio one should look at the order or relief which is being sought in the case..."

[17]While it is true that a determination has been made herein dated30 April 2020,the 2nd application does not purport to re-litigate the issues raised in the earlier application. It is an application brought by a new set of applicants and whose only interest is to protect their proprietary rights under certain land sale agreements entered into between them and the petitioner. They are not interested in reversing the revocation of grant or in being appointed as administrators of the deceased’s estate. Moreover, it is now settled that the doctrine does not apply when what is sought is a review; which invariably entails correction of errors apparent on the face of the record and new matters arising which could not be brought to the attention of the Court when the decision was made. Thus, in Raila Odinga & 2 Others vs. Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court restated the principle and cited with approval, an excerpt from Jersey Evening Post Ltd vs. Al Thani [2002] JLR 542 at 550 thus:

“A court is functuswhen it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected.

[18]Accordingly, the argument, by counsel for the Objectors that the Court is functus officio in connection with the application dated20 July 2020is untenable. In the same vein, and for the same reasons, it is my finding that there is no merit in the submission that the said application is res judicata. Besides, the said application neither seeks the same relief as was sought in the earlier application; nor is it between the same parties. The plea was therefore improperly raised herein.

[19] As to whether an application for review is tenable where an appeal has been preferred, it is common ground that a Notice of Appeal was indeed filed herein; and this fact was expressly acknowledged by counsel for the applicants. A copy of the Notice of Appeal dated 5 May 2020, filed pursuant to Rule 75 of the Court of Appeal Rules, 2010is on the file. It was filed by M/s Nyairo & Company Advocates,on behalf of the Respondent, Florence Waithira Mwaura. And, for purposes of the Court of Appeal Rules, an appeal is defined in Rule 2 thereof to include an intended appeal. It was therefore improper for the applicants to bring the application dated 20 July 2020 seeking the review of the same ruling that has been appealed. This is because Order 45 Rule 1(1) of the Civil Procedure Rules, a provision imported in the Law of Succession Act by dint of Rule 63 of the Probate and Administration Rules, is explicit that:

Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or

(b) by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

[20] It is manifest from the above provision that where, as is the case herein, an appeal has been preferred, the avenue for review is, in effect, blocked. The Court of Appeal made this clear in Otieno, Ragot & Company Advocates vs. National Bank of Kenya Limited [2020] eKLR thus:

“It is not permissible to pursue an appeal and an application for review concurrently. If a party chooses to proceed by way of an appeal, he automatically loses the right to ask for a review of the decision sought to be appealed. In the case of Karani & 47 Others v Kijana & 2 Others [1987] KLR 557 the court held that:

“…once an appeal is taken, review is ousted and the matter to be remedied by review must merge in the appeal.” (See also: African Airlines International Limited v Eastern & Southern Africa Trade Bank Limited [2003] 1 EA 1 (CAK)).

Even though the substantive appeal had not been filed, the respondent had filed a notice of appeal. At the time when the application for review was made, the notice of appeal was in place. In effect, it was pursuing the relief of review while keeping open its option to appeal against the same ruling. It probably hoped that if the application for review failed it would then pursue the appeal. It was gambling with the law and judicial process. It is precisely to avoid this kind of scenario that the option either to appeal or review was put in place. There can be no place for review once an intention to appeal has been intimated by filing of a notice of appeal. (See: Kamalakshi Amma v A. Karthayani [2001] AIHC 2264). The respondent’s application for review was therefore incompetent hence the court did not have jurisdiction to grant the orders sought under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. This determination is sufficient to dispose off the appeal.”

[21] It is not lost on the Court that, in his written submissions, counsel for the applicants, while acknowledging that the Respondent filed a Notice of Appeal, contended that nothing in law prevents the applicants from seeking a review, since the applicants are not parties to the said appeal. While this is essentially true, there is an exception to the rule; for Rule 1(2) of Order 45 of the Civil Procedure Rules is explicit that:

A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.

[22]Two things stand out from this provision; the first being that the party seeking review ought to have been a party to the initial proceedings from which an appeal and/or application for review has arisen. This is not the case herein. As has been pointed out herein above, the 2nd application was filed by some 48 applicants pursuant to Section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules; seeking that the Court be pleased to review its ruling dated 30 April 2020; and that the Court be pleased to hold and find that, anything done and executed pursuant to and in reliance on the Grant issued herein remains legal and valid. The applicants also prayed that the Court be pleased to issue orders restraining the respondents by themselves, their servants or agents from in any way interfering with the applicant’s peaceful occupation and enjoyment of parcels bought by them from James Mwaura Thuku.

[23] Needless to state that the applicants were not parties to the application that culminated in the ruling dated 30 April 2020; and while they would, as purchasers for value, qualify as interested parties for purposes of review on the authority of Musa Nyaribari Gekone & 2 Others vs. Peter Miyenda & Another (supra), it was imperative that they first apply for leave of the Court to be enjoined as such, upon demonstrating that they have an identifiable stake in the proceedings. The rationale for this was well explicated in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR thus:

"a suit in court is a solemn process, owned solely by the parties. This is why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined to a suit as an interested party, this new party cannot be heard to seek to strike out the suit on the grounds of defective pleadings."

[24] Moreover, as pointed out in Judicial Service Commission vs. Speaker of the National Assembly(supra), an interested party "...may not be wholly indifferent to the outcome of the proceedings in question... he may not be wholly non-partisan as he is likely to urge the court to make a determination favourable to his stake in the proceedings."Thus, in Re Estate of Beth Muthei Mulili (Deceased) [2019] eKLR, with which I fully agree, it was held that:

“From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:

One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:

i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.

ii. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.

iii. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”

[25] No such leave was sought or obtained by the interested parties. There was not even a prayer in the instant application for such leave. That, in my view, was presumptuous on the part of the interested parties. They evidently jumped into these succession proceedings directly by filing the said application without any leave of the Court so to do.

[26]Secondly, it is manifest fromOrder 45 Rule 1(2) of the Civil Procedure Rulesthat an application for review would not be simultaneously tenable with an appeal where the ground of appeal is common to the applicant and the appellant. The main ground of appeal, as was articulated by counsel for the Respondent in the written submissions dated7 September 2020,was that the Court did not take into account that the estate had been fully distributed and part of it transferred to third parties (the interested parties) who ought to have been included in the objection proceedings and given an opportunity to be heard before the decision dated30 April 2020was rendered. In the premises, I am in agreement with counsel for the Objectors that the 2nd application is incompetent on the ground that there is a pending appeal in respect of the same ground advanced therein.

[27] Counsel for the Objectors also raised the issue of jurisdiction as a preliminary point. His argument was that the stake pitched by the interested parties as purchasers is not justiciable within the framework of the Law of Succession Act. He took the view that the said application raises what is in effect a dispute over ownership or title to land; and therefore should have been filed before the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution and Section 13(1) and (2) of the Environment and Land Court Act, No. 19 of 2011. It therefore bears repeating what can be gleaned from the application dated20 July 2020as the main cause of action.

[28]It is manifest from the Supporting Affidavit sworn by Samuel Kinuthia Karanjaand Mary Njeri Mwaura (who appear not to be parties to the application) that James Mwaura Thuku (the deceased Petitioner) was the registered proprietor of Land Parcel Number I.R 57123orI.R 1557/167 situated south east of Naivasha Town; and that James Mwaura Thuku subdivided the property into 94 plots, some of which he sold to the applicants and gave each of them possession thereof before his demise on 24 December 2017. They further averred that they were shocked to learn that by a ruling dated 30 April 2020, the Court revoked the Grant issued to James Mwaura Thuku, thereby exposing them to the risk of loss of their properties, which they have developed at great expense.

[29] The applicants further averred that, in their understanding, the effect of the ruling of 30 April 2020 was a declaration that they have no right to their respective portions of the suit property. They are therefore keen on having this Court reverse its decision and declare valid the various land sale agreements they made with the Petitioner before his demise. To this end, the applicants annexed to the Supporting Affidavit a copy of the title in the name of James Mwaura Thuku, as well as copies of the land sale agreements between the deceased, James Mwaura Thuku and the applicants. They likewise annexed to their Supporting Affidavit photographs to demonstrate that they have gone ahead and improved their respective portions of the suit property by erecting developments thereon; and that they stand to suffer immense loss should the decision of 30 April 2020 be implemented by the Objectors.

[30] Clearly therefore, the applicants seek to vindicate their right to ownership of the respective portions of the suit property, sold to them by the Petitioner before his demise; yet Article 162(2)(b) of the Constitution is explicit that:

“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to … the environment and the use and occupation of, and title to, land.”

[31] Needless to say that the Environment and Land Court is the Court envisaged by Article 162(2)(b) aforestated. Consequently, the applicants ought to have approached the Environment and Land Court for relief in the circumstances. I therefore entirely agree with the position taken by Hon. Musyoka, J. in Re Estate of Alice Mumbua Mutua (deceased) [2017] eKLR that:

“…The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the Probate court with respect to determining the assets of the deceased, the survivors and the persons beneficially interested. The function of the Probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries and distribution of the assets…However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and Probate and Administration Rules. Such have to be resolved through structures created by the Civil Procedure Act and Rules…Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime, the property in question is removed from the distribution table. The presumption is that such disputes arise before distribution of the estate, or the confirmation of grant. Where they arise after confirmation, then they ought to strictly be determined outside of the probate suit for the probate court would in most cases be functus officio so far as the property in question is concerned…”

[32]The same position was taken inRe Estate of P N N (Deceased) [2017] eKLRthus:

“According to Article 162(2) of the Constitution the Environment and Land Court (ELC) is vested with jurisdiction to determine disputes touching on ownership and the right to occupy and use land. Article 165(5) of the Constitution states that the High Court has no jurisdiction over matters that are the subject of Article 162(2) of the Constitution…meaning that this court then, by virtue of Article 165(5) of the Constitution, does not have any jurisdiction over it…”

[33]Indeed, even where a third party claim is lodged before confirmation of grant and distribution, the stipulation underRule 41(3)of theProbate and Administration Rulesis that the dispute be ventilated in a different more suitable forum provided for the settlement of such disputes before the probate court can enforce the finding. It provides that:

“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant … by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI [now 37] rule 1 of the Civil Procedure Rules and may thereupon … proceed to confirm the grant.”

[34] It is for all the reasons aforestated that I find merit in the Preliminary Objection raised in response to the application dated 20 July 2020. The same is hereby allowed with the result that the application dated 20 July 2020 is incompetent and is accordingly struck out with costs.

[35] Turning now to the Respondent’s application dated 17 June 2020, I note that it basically seeks an order of stay of both execution and proceedings following the decision of the Court dated 30 April 2020, pending the hearing and determination of her appeal to the Court of Appeal. The said application (the 1st application for the purpose of this ruling) was filed under Articles 47, 50 and 159 of the Constitution; Section 47of the Law of Succession Act and Rules 49, 63 and 73 of the Probate and Administration Rules. The main ground raised in support of the application, and which was adverted to in the Supporting Affidavit sworn by the Respondent, is that by 30 April 2020 when the Grant of Letters of Administration herein was revoked, the estate of the deceased, Samuel Thuku Kiariehad already been fully distributed and the two properties that formed the subject of the Objection Proceedings had already been transferred, by way of transmission, to James Mwaura Thuku as the beneficiary thereof.

[36] It was further a key plank of the Respondent’s application that James Mwaura Thuku had been utilizing the properties and had sold portions thereof to third parties who had since taken possession and developed the land substantially. She believes that her appeal therefore raises very serious and weighty legal issues and would be rendered nugatory unless an order of stay is granted in the interim. At paragraph 10 of the said Supporting Affidavit, the Respondent averred that she stands to suffer substantial loss on account of the fact that she risks being sued by third party purchasers to whom her deceased husband sold portions of the estate property. She also drew the attention of the Court to a bundle of photographs annexed to her affidavit in proof of the developments that have since been undertaken on the property by third parties to demonstrate that she is deserving of the orders sought.

[37] The application was opposed by the Objectors; whose contention it was that the 1st application has been brought in bad faith with the sole intention of delaying the trial on merits of this matter. They maintained their stance that the Grant of Letters of Administration Intestate was fraudulently obtained by Respondent’s husband; and that they have since applied for a fresh grant in their joint names, as the daughters of the deceased, Samuel Thuku Kiarie. They were therefore apprehensive that should an order of stay be granted as sought, the Respondent will continue to intermeddle with and waste the estate property and in effect expose them to the risk of losing their inheritance altogether.

[38] Thus, in the written submissions filed on the Respondent’s behalf in respect of the 1st application, Ms. Odwa underscored the right to be heard on appeal as enshrined in Article 50 of the Constitution. She relied on Re Global Tours & Travels Ltd,HCWC No. 43 of 2000 and Mursal Guleid & 2 Others vs. Daniel Kioko Musau [2016] eKLR to support the submission that the Respondent stands to suffer substantial loss unless sought are granted. She urged the Court to note that already an application has been made by the Objectors to be appointed as the administrators of the deceased’s estate; and therefore that they are likely to pursue cancellation of the title issued to her husband James Mwaura Thuku, to the detriment of the beneficiaries of the estate of James Mwaura Thuku. Ms. Odwa also made reference to Mugah vs. Kunga [1988] eKLR and Re Estate of David Kiongera Kinyanjui (Deceased) [2018] eKLR in support of her arguments.

[39] Mr. Kagunza, counsel for the Objectors, relied on his written submissions dated 10 July 2020 wherein he proposed the following four issues for determination:

[a] Whether the Respondent deserves stay orders pending appeal;

[b] Whether the Respondent’s appeal is arguable;

[c] Whether the Respondent’s appeal shall be rendered nugatory; and

[d] Whether the application for stay has been made without undue delay.

[40] Mr. Kagunza proceeded to submit that the Respondent had utterly failed to satisfy the test for grant of stay orders pending appeal as provided for in Order 42 Rule 6(2) of the Civil Procedure Rules. He cited Trust Bank Limited & Another vs. Investech Bank Limited & 3 Others, Civil Application No. Nai. 258 of 1999, for the holding that:

“The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put it another way, it is not frivolous and secondly that unless he is granted stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…”

[41] Counsel then went on to demonstrate why, in his view, the appeal stands no chance of success. I hasten to add however that, thus far, the Memorandum of Appeal is yet to be shown to the Court. Thus, all those arguments as to the merits of the appeal appear to be misplaced in so far as they are speculative. Moreover, it is not for this Court to consider the merits of the intended appeal; that being a relevant consideration in an application for stay before the Court of Appeal pursuant to Rule 5(2)(b) of the Court of Appeal Rules. Hence, the authority of Trust Bank Limited & Another vs. Investech Bank Limited & 3 Others(supra) is also inapplicable.

[42] In the light of the foregoing, the key issue that presents itself for determination is whether the Respondent is entitled to the orders sought by her in the 1st application dated 17 June 2020; and although extensive submissions were made herein by counsel on the prerequisites for stay as provided for in Order 42 Rule 6 of the Civil Procedure Rules, Rule 63 of the Probate and Administration Rules is explicit that:

“(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), … shall apply so far as relevant to proceedings under these Rules.

(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased person shall be those existing and in force immediately prior to the coming into operation of these Rules.”

[43] I therefore subscribe to the view that, since the said provision was consciously omitted in Rule 63 aforestated and was not imported for purposes of the Law of Succession Act, it is inapplicable to the instant application. It has to be borne in mind that the Law of Succession Act was intended to be a stand-alone piece of legislation; as was observed by the Court of Appeal in Josephine Wambui vs. Margaret Wanjiru Kamau & Another [2013] eKLR. It stated thus:

“We hasten to add that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and Rules of procedure. In the few instances where the need to supplement the same has been identified some specific rules have been directly imported to the Act through Rule 63(1).”

[44] Accordingly, the instant application is to be determined on the basis of whether sufficient cause has been shown for stay for purposes of Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. In this regard, I would echo the expressions of Hon. Warsame J. (as he then was) in Samvir Trustee Limited vs. Guardian Bank Limited, [2007] eKLR that:

“…The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement. It is a fundamental factor to bear in mind that, a successful party isprima facieentitled to the fruits of his judgement; hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant… At the stage of the application for stay of execution pending appeal the court must ensure that parties fight it out on a level playing ground and on equal footing in an attempt to safeguard the rights and interests of both sides. The overriding objective of the court is to ensure the execution of one party’s right should not defeat or derogate the right of the other. The Court is therefore empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court…”

[45] Thus, I have given due attention to the competing interests of the Respondent on the one hand and the Objectors on the other hand. The Respondent has shown that she has lodged an appeal; and that the Objectors have already made a step towards the execution of the orders issued herein on 30 April 2020 by filing an application dated 18 May 2020 seeking to be issued with a fresh grant. Her contention is that there is nothing left to be administered; and that it is likely that the Objectors will want to have transmission to her deceased husband reversed. That apprehension is however simply that; a supposition.

[46] On the other hand are the three Objectors, daughters of the deceased Samuel Thuku Kiarie, whose interest in the deceased’s estate ranked in pari passu with the Petitioner, James Mwaura Thuku. They denied that they consented to their brother James Mwaura Thuku being appointed as the administrator; or even that they notified of the petition as is required by the law. As was pointed out in the ruling dated 30 April 2020, the Objectors rank in priority to the Respondent in so far as the estate of the late Samuel Thuku Kiarie is concerned.

[47]It is also a fact that the Court has already made a ruling in the Objectors’ favour, revoking the Grant of Letters of Administration Intestate issued to the Petitioner. That means that the estate is currently exposed to dissipation. It could very well be that the estate had already been distributed by 24 December 2017 when the Petitioner passed away. There is however no such indication on the file. It would take an administrator, properly so appointed, to ascertain the status of the estate assets and file a report as envisaged by Section83(e) of the Law of Succession Act. It is therefore my finding that the interests of justice require that the prayer for stay of proceedings be declined so as to prevent the estate, or what is left thereof, from further dissipation; while at the same time an order for the maintenance of the prevailing status quo be granted to preserve the estate pending the hearing and determination of the appeal.

[48]In the result, it is hereby ordered that:

[a]In respect of the Respondent’s application dated17 June 2020,the prayers for stay of proceedings and stay of execution are both declined. In lieu thereof, it is hereby ordered that the status quo obtaining as at the date hereof in respect of the properties forming part of the estate of the deceased,Samuel Thuku Kiarie,including the mutations ensuing therefrom, be maintained pending the hearing and determination of the Respondent’s appeal. Each party shall bear own costs of the said application.

[b]The application dated20 July 2020by the Interested Parties is hereby struck out with costs for being incompetent.

It is so ordered.

SIGNED, DATED AND DELIVERED AT ELDORET THIS 30TH DAY OF NOVEMBER 2020

OLGA SEWE

JUDGE