[2022] KEHC 10014 (KLR)

In re Estate of the Late Mathew Muthoka Kitenye (Deceased) (Civil Appeal 8 of 2019) [2022] KEHC 10014 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10014 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 8 of 2019

GMA Dulu, J

July 12, 2022

IN THE MATTER OF THE ESTATE OF THE LATE MATHEW MUTHOKA KITENYE alias MATHEWS MUTHOKA KITENYE (DECEASED)

Between

Justus Mutisya Muthoka

Appellant

and

George Musomba Muthoka

Respondent

Ruling

1. Before me is an application dated October 6, 2021 filed by the appellant Justus Mutisya Muthoka through Counsel B.M Mungata & company under Article 159 (d) of the Constitution, and section 3A, 3B, 7 and 41 of the Appellate Jurisdiction Act.

2. The application has five (5) prayers, One of which has been spent as follows – 1. (Spent).

2. That the court be pleased to grant leave to the applicant to appeal against the judgment delivered by this court on September 30, 2021.

3. That upon grant of the leave, the Notice of Appeal be and is hereby deemed as duly filed.

4. That such leave do operate as a stay of implementation of the Grant issued on the July 22, 2015 and the Certificate of Confirmation of Grant dated May 22, 2017 pending hearing and determination of the intended appeal.

5. That costs of the application be provided for.

3. The application has grounds on the face of the summons that the applicant intends to appeal to the Court of Appeal against this court’s judgment delivered on September 30, 2021, that draft Notice of Appeal was duly prepared and dated October 6, 2021 but cannot be filed as leave to appeal has not been granted by this court, that Grant of Representation was issued on July 22, 2015, and Certificate of Confirmation of Grant dated May 22, 2017 was also issued, which is challenged by the applicant, and that the effect of both the Grant and the Certificate of Grant issued is that the appellant/respondent herein shall conduct transfers using the said grant and confirmation resulting in sub-division of the estate of the deceased as observed by the trial court in its ruling delivered on December 4, 2019.

4. I have not seen any replying affidavit filed in response to the application. However, the application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by B.M Mungata & company for the applicants and Mutunga & Muindi for the respondent.

5. In the written submissions, the applicant’s counsel cited a number of cases on the requirement of leave of this court to appeal to the Court of Appeal in succession matters. Counsel cited, inter alia, Nairobi Civil Application No. E31 of 2020 – Daniel Kioko Kaindi –vs- Esther Ndete Mbului & Erick Musya Kaindi in which the case of Rhoda Wairimu Karanja & Anor –vs- Mary Wangui Karanja & Anor (2014) e KLR was considered in which the Court of Appeal stated as follows –“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 where if the application for leave is refused, with leave of this court.”

6. With regard to the Notice of Appeal, counsel relied on section 7 of the Appellate Jurisdiction Act which allows this court to grant leave to file Notice of Appeal out of the prescribed timelines.

7. Counsel also argued that if the stay orders are not granted, the applicant stands to suffer substantial loss as the administrators will proceed to subdivide the land and distribute it, resulting in issuance of new titles.

8. The respondent’s counsel on the other hand, has argued that the power to grant leave to appeal is discretionary, and the request herein being sought to file a second appeal is misconceived. Secondly, that the application was filed late, more than 14 days after delivery of judgment contrary to section 75(2) of the Civil Procedure Act. Finally counsel contended that this succession matter has been pending in court for 28 years now, and stay orders should thus not be granted.

9. Having considered the application, documents filed, the submissions of the parties and the law, in my view, the application is not merited and is for dismissal. I appreciate that counsel for the applicant has relied on case law on the jurisdiction of this court to grant leave in succession matters to appeal to the Court of Appeal.

10. However, in my view, the power of this court to grant leave to so appeal only applies to situations where the High Court is the trial court and not in matters where the High Court decision is a decision made on appeal from the magistrate’s court like the present case.

11. In this regard, in my view, in the case cited by the applicant’s counsel – Daniel Kioko Kaindi –vs- Esther Ndete Mbuliu & Others (supra), the Court of Appeal was clear on this position when it stated as follows –“… 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 w here if the application for leave is refused, with leave of this court”.

12. In addition, the above expression of the Court of Appeal has statutory underpinning under section 50(1) of the Law of Succession Act (Cap.160), which states as follows –50(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”.

13. It thus follows from the above, that the statute has barred appeals to the Court of Appeal from matters where the High Court has determined a succession matter on appeal, as is the present case. I will thus not grant leave to the applicant to file an appeal to the Court of Appeal herein, as the appeal from the decision of the magistrate to the High Court was final.

14. With regard to the prayers for stay of execution pending the appeal in the Court of Appeal, in my view, this court can grant such stay orders only if it grants leave to appeal to the Court of Appeal. As I have found that there is no appeal to the Court of Appeal herein, and since I have no jurisdiction to grant leave to appeal in this matter, this court cannot also grant the stay orders sought.

15. Consequently, and for the above reasons, I dismiss the application, and decline to grant any of the prayers sought. Any interim orders issued by this court are hereby vacated.

16. I award the costs of the application to the respondent in the application Festus Mutisya Muthoka.

DELIVERED, SIGNED & DATED THIS 12THDAY OF JULY, 2022, IN VIRTUALLY AT MAKUENI COURT.GEORGE DULUJUDGE