[2022] KEHC 1594 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA

AT MIGORI

SUCCESSION CAUSE NO. 469 OF 2014

JOHN OYOO OLARE.......................................................................................APPLICANT

versus

JOSEPH OREYOTANA...........................................................................1st RESPONDENT

GABRIEL ALUGA TANA........................................................................2nd RESPONDENT

and

FREDRICK OGAL ALUGA.............................................................INTERESTED PARTY

RULING

The Notice of Motion dated 7/5/2020 was filed by Fredrick Ogal Aluga, an Interested Party in this matter. He has brought this application seeking orders that the court to grant an interim stay of execution of the judgment delivered on 14/2/2019 pending the hearing and eventual determination of Kisumu Court of Appeal No. 84 of 2019 and for costs of this application.

The application is premised on the following grounds: that the applicant is aggrieved by this court’s judgment delivered on 11/2/2019; that the appeal has high chances of success and if stay is not granted, the appeal will be rendered nugatory; that the applicant will suffer substantial loss if the respondents proceed to subdivide the disputed land parcel number Kanyamkago / Kawere 1/90 as the same will not revert back to its original state; that it is in the interest of justice that the stratum be preserved since the respondents being persons of straw, save for the decree, may not be in a position to compensate the applicant in the event the appeal succeeds. In his affidavit in support of the application, the applicant added that the respondents are strangers to the applicant save that they have a decree against the applicant and hence his apprehension. He attached a copy of the Memorandum of Appeal.

The applicant also filed submissions on 9/7/2020 but they did not seem relevant to the instant application.

John Oyoo Olare the Petitioner/Respondent, through the firm of Oguttu Ochwal Advocate, filed grounds of opposition to the effect that the application is premature, misconvinced, incompetent and untenable; that the judgment, the subject of appeal was as a result of an Arbitral Award and hence no appeal lies as a matter of right under Order 46 Rule 18(2) of the Civil Procedure Rules; that the decision is not appealable under Section 50 of Laws of Succession Act; that having consented to the Arbitral Award, the same cannot be the subject of appeal; that the appeal does not meet the threshold of provisions of Order 42 Rule 6 Civil Procedure Rules; that this application is meant to obstruct the due process of the court and frustrate other beneficiaries; that there has been inordinate delay in bringing the application and is hence an abuse of the Court process.

The Respondent’s submissions were filed on 9/1/2020 in which counsel raised four issues:-

1. Whether there is sufficient cause to warrant grant of stay order;

2. Whether the applicant will suffer substantial loss if the order is not granted;

3. Whether the order of stay should issue in the interest of justice;

4. Whether the applicant will provide security if the order of stay is granted.

I have considered the application, the grounds in support thereof and the grounds in opposition and the respondent’s submissions.

The Interested Party/ Applicant is present in these proceedings by virtue of being the son of Gabriel Aluga, one of the beneficiaries of the deceased’s estate. As properly captured by the respondents’ counsel in their submissions, the court referred this matter to arbitration for reasons that the deceased died in 1972 before enactment of the Law of Succession Act. The process culminated in the report of the Assistant County Commissioner, Oyani Division assisted by the Clan elders and was filed in court on 1/7/2015 to which both parties including the applicant consented. The issue of shares due to each beneficiary was taken up and parties agreed on it and the County Surveyor Migori then proceeded to subdivide the land in terms of the award and the report was filed in court and parties were instructed by the court to file their respective submissions. The respondent did not raise any objection but the applicant did. The court considered the said objection and rendered its judgment which is the subject of appeal.

The two issues for consideration are:-

1) Whether the Notice of Appeal as filed, without leave of court is competent;

2) Whether there are merits in the applicant’s application.

The Respondent raised the issue that the applicant should have sought the leave of the court before filing the appeal pursuant to the provisions of Section 50 of the Law of Succession Act (LSA). Section 50 Laws of Succession Act provides as follows:-

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 the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.

Section 50 is silent on the question of whether an appeal lies from the High Court to the Court of Appeal particularly in regard to decisions made by the High Court in exercise of its original jurisdiction. The above provision is in relation to an appeal from the subordinate court to the High Court and the decision of the High court is final. J. Limo considered such application in Succession Cause No. 58 of 2018 (Chuka). In the matter of the Estate of Sarastino M’Chabari M’ukabi alias Chabari Mukabi, and Margret Karimi Celestino – Petition =vs= John Njeru Mbare & Others where he observed that there seems to be two schools of thought on the matter, whether to proceed and appeal under Section 47 of the Law of Succession Act which grants the court power to make such orders as may be just and expedient and therefore the right of appeal to Court of Appeal is expedient and protected under Article 45 of the Constitution. The other proposition, the judge considered is the decision of Julius Kamau Kithaka vs Waruguru Kithaka Nyaga & 2 others (2013) eKLRwhere the court said:-

“It is trite law that where any proceedings are governed by a special Act of Parliament, like in this case, the Law of Succession Act,the provisions of such an Act must be strictly construed and applied…..therefore, what is in the Law Of Succession Act is what was intended to be therein in the manner and extent it is there. What is not therein expressly is what was intended not to be there by the legislature. I find that the applicant in this case was not required to seek leave to appeal from the High Court.”

The Judge also considered the decision that has been relied upon by the Respondent, Rhonda Wairimu Karanja & Others vs Mary Wangui Karanja & Another (2014)EKLRwhere the Court of Appeal was of the view that to appeal to the Court of Appeal from the High Court, one must obtain leave. The court upholding J. Musyoka’s decision held:

“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..’ The Honourable court proceeded to hold 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……”

In the above case, the court held that where the High Court denies one leave to appeal, then the party can move the Court of Appeal for the same. I am persuaded to agree with the Respondent’s submission and the above decision that there is a legal argument that an appeal from the High Court to the Court of Appeal in Probate matters will only lie with the leave of the court. This procedure will help sieve out unnecessary appeals and would stop would be vexatious litigants from denying other parties from enjoying the fruits of their judgments. However, that does not mean that a party’s right of appeal should be curtailed. I agree with the view taken by the Court of Appeal in the above decisions, and the result is that the Notice of Appeal that was filed by the applicant on 25/4/2019 without the leave of the court is therefore incompetent and will not see the light of day.

The applicant brought this application by way of Notice of Motion and invoked the Civil Procedure Act and Rules i.e. Sections 1(a) (b) 3(a) and 63 of Civil Procedure Act and Order 42 Rules 6(2)(a) (b) and (c ). The cited provisions do not apply in succession matters because the Law of Succession Act is sui generis. It has its own special procedures that regulate the procedures in probate matters. The Civil Procedure Act and Rules will only apply by dint of Rule 63 of the Probate and Administration Rules which provides for the specific provisions of the Civil Procedure Act and Rules that are applicable to probate matters. The Court of Appeal specifically held that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and Rules of Procedure, in the case of Josephine Wambui Wanyoike =vs Margret Wanjiru Kamau (2013) eKLR.

Whether the order of stay is merited:

In the judgment under challenge, the Court found that the objections raised by the applicant were without basis because the elders who took part in the arbitration were voluntarily appointed and that the applicant took part in the process and that the interested party did not challenge those findings. The court also declined to interfere with the distribution of the estate as it had been done under customary law. In fact, the applicant’s father got the biggest chunk of the land. In his application, for stay the applicant does not clearly state what grieves him in the court’s judgment and or the substantial loss that he is likely to suffer if an order of stay is not granted. He has not demonstrated that he was entitled to more land than he got and hence if the subdivision proceeds, he will suffer loss. The onus rests on the applicant to demonstrate what loss he is likely to suffer which he has miserably failed to do.

The judgment herein was delivered on 14/2/2019. The applicant filed a Notice of Appeal on 25/2/2019. He filed this application on 7/5/2020, over a year later. He has not explained the delay. Even if the applicant were entitled to the orders, there has been unexplained inordinate delay.

In my view, the applicant has not demonstrated that the appeal will be rendered nugatory if an order of stay is not granted. This is a matter that has been pending in court for very long, that is, since 1995, over twenty six (26) years and litigation must come to an end and parties be allowed to enjoy the fruits of their judgment unless very good reason is shown. The court finds no merit in the application as there is no basis laid for the issuance of the said orders.

For the foregoing reasons, apart from the application being incompetent, it is also unmerited and its hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 15TH DAY OF MARCH, 2022

R. WENDOH

JUDGE

Ruling delivered in the presence of:

Mr. Mulisa for Petitioner

Fredrick Ogal Aluga in person

Ms. Nyauke court assistant