[2022] KEHC 9917 (KLR)

In re Estate of Siwanyang Ngilotich (Succession Cause 14 of 2016) [2022] KEHC 9917 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9917 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Succession Cause 14 of 2016

WK Korir, J

July 13, 2022

IN THE MATTER OF THE ESTATE OF SIWANYANG NGILOTICH ALIAS SIWANYANG NGILOTON (DECEASED)

Between

Jepore Sara Christopher

1st Petitioner

Samwel Rotich Siwanyang

2nd Petitioner

Daniel Pkite Siwanyang

3rd Petitioner

and

Teresia Chesaang Christopher

Objector

Ruling

1. Through the summons dated April 5, 2022 and brought under rules 49 and 73 of the Probate and Administration Rules as well as Section 7 of the Appellate Court Rules, the Applicant (Teresia Chesaang Christopher) seek the following orders:a.That this application be certified as urgent and the same be heard ex-parte on priority basis;b.That this Honourable Court be pleased to order that pending the hearing and determination of the instant application an interim order of stay of execution and/or implementation of the Judgement/Decree dated 17/6/2021 and/or grant an interim order of status quo, barring and inhibiting the registration of the Certificate of Confirmation of Grant herein;c.That this Honourable Court be pleased to order that pending the hearing and determination of the intended appeal and order stay of execution and/or implementation of the judgment/decree dated 17/6/2021 and/or to grant an order of status quo, barring and inhibiting the registration of the Certificate of Confirmation of Grant herein;d.That leave be granted to the applicant to file an appeal to the Court of Appeal of Kenya against the judgment/decree of this Court dated 17/6/2021;e.Costs of this application do abide the Appeal.

2. Jepore Sara Christopher, Samwel Rotich Siwanyang and Daniel Pkite Siwanyang who are the respective 1st to 3rd petitioners are named as the respondents.

3. The grounds in support of the application, the affidavit sworn by the Applicant in support of the application and the Applicant’s further affidavit of 3rd May, 2022 narrates that the Applicant has already filed a notice of appeal and unless stay of execution is granted, the substratum of the intended appeal shall be rendered nugatory. The Applicant also avers that the asset of the estate of the deceased Siwanyang Ngilotich alias Siwanyang Ngiloton being West Pokot/Kishaunet/127 may be transferred to third parties and such transfer is irreversible by virtue of Section 93 of the Law of Succession Act and the land would therefore not be recoverable should the appeal succeed. It is the Applicant’s case that delay in preparing the appeal was occasioned by the delay to secure typed proceedings of this Court and further that she was not aware that leave was a prerequisite prior to filing an appeal.

4. The respondents oppose the application through a replying affidavit sworn on May 23, 2022 by the 1st Petitioner/1st Respondent. Their case is that there was inordinate delay in filing the application as it has been brought ten months after judgment was delivered. They also state that the application has been brought in bad faith and is frivolous, incompetent, ill-conceived and without merit. According to the respondents, the Applicant has not demonstrated the substantial loss she is likely to suffer should the orders sought be declined. This Court is therefore urged to dismiss the application with costs.

5. This application was canvassed by way of written submissions. The Applicant filed submissions dated April 5, 2022. The Applicant submits that this Court has jurisdiction to hear the application. Counsel relied on the case of John Mwita Murimi & 2 others v Mwikabe Chacha Mwita & another [2019] eKLR to submit that in succession matters an appeal to the Court of Appeal can only be made with leave. Counsel submitted that the Applicant has complied with the requirement of Rule 75 of the Court of Appeal Rules that a notice of appeal must first be filed and urged this Court to invoke its powers under Section 7 of the Appellate Jurisdiction Act and grant the Applicant leave to appeal. Counsel urged that the orders sought are merited and prayed that this Court grants them.

6. The petitioners/respondents filed submissions dated May 23, 2022 and argued that the Applicant is not entitled to the orders sought. Their case is that since the application was made ten months after judgement was delivered, there was inordinate delay on the part of the Applicant. They further submitted that the position prevailing prior to the delivery of the judgement was maintained by the judgement and the Applicant will not face any prejudice if the orders sought are not granted. The respondents relied on the case ofIn re Estate of Wanga Ole Oiyie[2022] eKLR and submitted that the Applicant is not entitled to orders of stay as she has not demonstrated the irreparable loss she will suffer.

7. On the question as to whether the Applicant is deserving of leave to appeal, the respondents submitted that leave to appeal in succession matters is discretionary and can only be granted where an applicant has demonstrated a prima facie case. According to the respondents, the Applicant has not shown that she has an arguable case. They consequently urged the dismissal of the application.

8. The parties do not appear to question the fact that an appeal to the Court of Appeal in succession matters can only be processed with the leave of the High Court or the Court of Appeal where the High Court has declined an application for leave to appeal. Many Court of Appeal decisions speak to this point. Without going into the intricacies of the debate surrounding the right of appeal to the Court of Appeal, I think that the focus in this application should be on what considerations this Court should take into account in granting or refusing leave. In that regard the Court of Appeal stated in Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] eKLR that:“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 probate and administration disputes.”

9. Leave to appeal is, however, not automatic since an applicant is required to demonstrate a prima facie case. The Applicant has not placed any information before this Court regarding the grounds upon which she seeks to challenge the decision made on June 17, 2021 by my brother Bwonwonga, J. Notwithstanding this failure by the Applicant, I note that her intended appeal to the Court of Appeal is a first appeal and she should not be denied her right of appeal. I therefore find no good reason to deny the Applicant leave to appeal. In stating so, I find guidance in the statement of the Court of Appeal in Rhoda Wairimu Karanja & another(supra) that:“In view of these and given the adversarial nature of litigation in our system of justice, it would be unconscionable to allow as final the decision of a single judge, and limit the right of appeal to the High Court, especially now when the court hierarchy has been opened by the creation of the Supreme Court as an apex court.”

10. The next issue is whether an order of stay is merited. The general rule governing the grant of an order of stay of execution is that the applicant must demonstrate the likelihood of an irreparable substantial loss. In this case, the judgement of this Court that the Applicant seeks to appeal against confirmed the pre-existing status quo on the distribution of the deceased’s property to the beneficiaries. All that the Applicant has done is to state that she would be occasioned substantial loss if the assets of the estate of the deceased are sold. Despite claiming that LR No. West Pokot/Kishaunet/127 is in danger of being disposed of, she fails to demonstrate what occasions this danger. In any case, the respondents have averred that they reside on the land in question. The Applicant has not shown that the respondents are likely to sell the land on which they live in order to defeat her intended appeal.

11. It is additionally observed that nothing in the Applicant’s pleadings or submissions discloses the nature of her appeal. Whether the intended appeal is arguable or not cannot be determined in such circumstances. It was upon the Applicant to show that she has an arguable appeal but she has not done so. There is therefore no good reason advanced to warrant staying the judgement of this Court.

12. Based on the foregoing, the final orders of this Court are:a.Leave is hereby granted to the Applicant to appeal the decision of this Court in accordance with the applicable rules;b.The prayer for stay of execution is declined; andc.Each party to bear own costs.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 13THDAY OF JULY, 2022. W. KORIR,JUDGE OF THE HIGH COURT