[2022] KEHC 10445 (KLR)

In re Estate of Wanjohi Gakera (Deceased) (Succession Cause 364 of 2012) [2022] KEHC 10445 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10445 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Succession Cause 364 of 2012

RM Mwongo, J

May 10, 2022

N THE MATTER OF THE ESTATE OF WANJOHI GAKERA (DECEASED)

Between

Nelson Kariuki Gakera

Applicant

and

Susan Wangechi Kimani

1st Respondent

Simon Muriithi Kimani

2nd Respondent

William Muthike Kimani

3rd Respondent

Rosemary Wanjiku Wanjohi

4th Respondent

Moses Ndubai Kimani

5th Respondent

Ibrahim Muthii Kimani

6th Respondent

David Mwangi Ngari

7th Respondent

Raphael Mwaura Njeri

8th Respondent

Eunice Wangari Kimani for Susan, Esther, Immanuel

9th Respondent

Priscilla Wanjiru Mathenge

10th Respondent

Njogu Nderi Kinyua

11th Respondent

Nelson Kariuki

12th Respondent

Raphael Mwaura Njeri

13th Respondent

Andrew Kinyua Gakuo

14th Respondent

Jeremiah Kibiru Kumunga

15th Respondent

David Waita Kagwi

16th Respondent

Susan Esther Immanuel

17th Respondent

Ruling

1. By a judgment dated July 3, 2019, this court (Gitari,J) revoked a grant issued on December 16, 2004 and confirmed on 9/3/2006. The estatae of the deceased comprised Land parcel No Mwerua/Kagio/6xx.

2. Dissatisfied with the judgment the applicant has applied by a motion dated October 23, 2019, pursuant to rules 49 and 73 of the Probate and Administration Rules, and order 42 rule 6 of the Civil Procedure Rules seeking the following orders:1. That the honourable court be pleased to stay execution on the judgement delivered on July 3, 2019 pending hearing and determination of the appeal before the court of appeal.2. That the honourable court be pleased to stay further proceedings in this cause until the hearing and determination of the appeal before the court of appeal.3. That the costs of this application be in the cause.

3. The grounds supporting the application are many but the following are highlighted:a)That the judgement was delivered on July 3, 2019 in favour of the applicant/respondent.b)That the 1st, 2nd , 3rd, 4th , 5th , 6th , 7th and 14th respondents/applicants being aggrieved duly filed a notice of appeal.c)That the respondent had filed 2 applications dated August 20, 2019 and September 24, 2019 which seek confirmation of grant and issuance of grant respectively.d)That should the application be allowed and another grant is issued and or/confirmed, then the appeal before the Court of Appeal would be rendered nugatory.e)That the applicants are willing to offer such security as the honourable court may order.

4. In addition to the grounds, the applicant has deposed a supporting affidavit, of the major averments of which repeat the grounds.

5. The application is opposed through Nelson Gakera who filed a 28 paragraph replying affidavit dated October 30, 2019, seeking dismissal of the application. In summary he avers that:1. The application was brought late in the day and in bad faith.2. There is nothing to stay in this case as the judgment was a revocation of grant which is not capable of being stayed.3. The prayers sought are indefinite as they seek to stay proceedings and the judgment indefinitely yet there is not appeal pending.4. The application has been filed after a period of more than 120 days since the judgment was delivered.5. The applicant has not demonstrated that she has an arguable appeal.6. There is no dispute that the suit land belonged to my brother and the law is clear that the property of a deceased person who leaves no spouse or children is inherited by his siblings.7. There is no dispute that the grant had been obtained fraudulently behind the back of the family members.8. The applicant is the one who has been selling the land to third parties and if granted a stay of the judgement she will continue selling the land to defeat the court judgement.9. The applicant’s alleged appeal is against revocation of grant and cannot be rendered nugatory if stay is not granted as there is nothing to stay.10. The court should allow the respondents to enter and utilize 4. 8 acres being part of the suit land.

Parties’ Submissions 6. The applicant confirmed that he had not filed submissions, whilst the respondents filed submissions

7. The respondent submits that the prayers sought are indefinite; that there is no appeal pending; that all the applicant has annexed is a notice of appeal filed on 15/7/2019 against the judgment delivered on 3/7/2019; that the application should have been within 90 days and if late she ought to have filed an application for leave to appeal out of time.

8. The respondent relied on the case of James Ndonyu Njogu v Muriuki Macharia Nyeri ELC Appeal No 17 of 2016 where the court held that it had no jurisdiction to grant a similar application “since the orders sought do not relate to what the superior court decided.”

9. Further the respondent argued that there was nothing to stay as what the court ordered was the revocation of the grant. They cited the case of Raymond M Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010, where Makhandia, J (as he then was) held:“The court cannot see how it can order stay of the decree that is the subject of an appeal.….. The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs; and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order”

10. The respondent submitted that the main occupants of the suit land, are purchasers who have not preferred any appeal from the judgment. The applicant is the one enjoying the fruits of the land as she occupies the land and seems to be protecting the purchasers and keeping the respondent and other beneficiaries from the fruits of their judgment. As such, they argue, the application was filed in bad faith to scuttle justice and to circumvent the hearing of the respondents application for the court to appoint administrators and subsequent distribution of the estate of his brother.

11. Further the respondents argued that the applicant has not demonstrated that she has an arguable appeal, as there is no dispute that suit land belonged to the respondent’s brother and the law is clear that the property of a deceased person who leaves no spouse or children is inherited by his siblings.

12. It was the respondent’s case that the Intended appeal cannot be rendered nugatory as the applicant had not shown that she has an appeal that is capable of being rendered nugatory if the stay is not granted. The suit land is 6. 4 acres and she has a share in the land and the respondent does not intend to do anything with the land other than to cultivate and utilize it just like the applicant.

13. The respondent submitted that it was in the interest of justice for the court to order that the applicant allows the respondent and his siblings to utilize 4. 8 acres as her intended appeals are dealt with if any. Finally, it was argued that the applicant has not shown what prejudice she stand to suffer if the orders are not granted.

Issues 14. The issue that arises for determination is: Whether the applicant can be granted stay of execution of the judgment delivered on July 3, 2019 pending hearing and determination of the appeal before the court of appeal.

Analysis and Determination 15. In his application, the applicant invoked rule 49 of the Probate Rules. The rule allows a person to make an application by way of summons in cases where no provision is made elsewhere in the rules. The rule provides as follows:“A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these rules shall file a summons supported, if necessary, by affidavit.”

16. The second rule invoked by the applicant was rule 73 of the Probate Rules, which saves the inherent powers of the court to make such orders as are necessary to meet the ends of justice. It clearly does not apply the provisions of order 42 of the CPRto succession causes.

17. However, I think the former rule, rule 49 is wide enough to enable this court to invoke the provisions of order 42 to succession matters. Under order 42, the conditions which a party must establish in order for this court to order stay of execution are provided for in rule 6(2) of that order. The applicant must satisfy the court:i.That substantial loss may result to the applicant unless the order is madeii.That the application has been made without unreasonable delay; andiii.That the applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

18. On the question as to loss to be suffered; It is not in dispute that the confirmed grant was ordered revoked by this court. It is also not disputed that the respondent has filed two applications: one for a fresh grant and another for a confirmation thereof. Hence, the applicants are apprehensive that should the applications be allowed and another grant is issued and or/confirmed, they will suffer substantial loss.

19. On their part, the respondents argued that the applicant has been enjoying the fruits of the land as she occupies the land and seems to be protecting the purchasers, and has been keeping the respondent and other beneficiaries from the fruits of the judgment. Further, that the applicant has been selling the land and a stay would defeat the purpose of the judgment. These assertions by the respondent are not supported by any evidence.

20. The issue of loss to be suffered by the applicant is, in my view plainly established.

21. As to whether the application had been made without unreasonable delay, the applicants filed a notice of appeal on 15/7/2019, two weeks after the judgment was delivered on 3/7/2019. The notice of appeal annexed to the supporting affidavit of the applicants is marked “SWK 2. ” The present application dated October 23, 2019 and was filed three months after delivery of judgement. It cannot be said that there is unreasonable delay in the circumstances.

22. On their part, the respondents submitted that after filing a notice of appeal one has to file an appeal within 90 days and if late she ought to have filed an application for leave to appeal out of time. Hence, there was unreasonable delay.

23. In the case of Amal Hauliers Limited v Abdulnasir Abukar Hassan [2017] eKLR Korir, J, dealing with similar timeframes, held thus:“Was the application filed without unreasonable delay? The application has been filed four months after the delivery of the judgement. It is noted that the appeal was filed on March 22, 2017 soon after the delivery of judgement thus signaling the applicant’s interest in pursuing the appeal. it is only after the respondent’s counsel wrote to the applicant’s counsel on June 19, 2017 about the intention to execute that the applicant found it necessary to file the instant application. There is thus no inordinate delay on the part of the applicant.”

24. Here, the applicant filed the notice of appeal within time signaling the intention to appeal the matter. Hence, the filing of the in filing the application for stay of execution, three months (90 days) later, is reasonable. I do not see any basis for finding that there was unreasonable delay

25. Finally, on the issue as to whether the applicant has made any deposit of security, the applicants deponed in paragraph (f) of the summons general, that they were willing to offer such security as the honourable court may order.

26. In light of the foregoing, the applicants have satisfied the court that they are entitled to some form of protection in terms of stay. Rule 73 P&ARules which was invoked by the applicant grants the court inherent powers to make such orders as may meet the ends of justice.

Disposition 27. Ultimately, I do not find that the orders in the judgment are capable of being stayed since they are negative orders. On this, I defer to the holding of the Court of Appeal in the Raymond Omboga Case (Supra).

28. Instead, the order that appears to me to be just and appropriate in the circumstances is to order a stay in the proceedings herein for a limited duration, subject to the applicant securing the same with a deposit of security.

29. Accordingly I will, and hereby, order as follows:a.The applicant shall, as a sign of seriousness and to secure a stay of the proceedings herein, deposit security in court in the amount of Kshs 500,000/- within thirty (30) days from the date hereof;b.A stay of further proceedings in this matter is hereby granted for sixty (60) days from the date hereof to enable the applicant to pursue the appeal in the Court of Appeal;c.In the event of failure in compliance with any of the orders hereof, the proceedings herein may continue.

30. Orders accordingly

DELIVERED AT KERUGOYA ON THIS 10TH DAY OF MAY 2022. ................................................R MWONGOJUDGEDelivered in the presence of:1. Migwi holding brief for the Applicant2. Asiimwe holding for the Respondents3. Ndung’u holding brief for Respondents4. Mr. Murage, Court Assistant