[2023] KECA 1513 (KLR)

Kimani v Njeri & another (Civil Application E115 of 2022) [2023] KECA 1513 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1513 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E115 of 2022

W Karanja, FA Ochieng & LK Kimaru, JJA

December 8, 2023

Between

Pauline Wambui Kimani

Applicant

and

Stephen Ngugi Njeri

1st Respondent

Teresia Everlyn Nyanjau

2nd Respondent

(Being an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules against the decree and ruling of the High Court at Nairobi (A.O.Muchelule,J (as he then was) dated 21st July 2021 in Succession Cause No. 2253 of 2012)

Ruling

1. On July 21, 2021, A O Muchelule, J. (as he then was) rendered a Ruling which inter alia, revoked the Grant of Letters of Administration issued to Pauline Wambui Kimani (the applicant) in respect of the estate of Duncan Kamau Wainaina on November 5, 2013. The learned Judge also ordered that the entire estate reverts to the name of the deceased. The said grant was revoked on grounds of non- disclosure as the applicant is said to have failed to disclose that the deceased was living as a family with one Jacinta Njeri Ngugi and her children (the respondents herein), and they were also claiming to be beneficiaries to the said estate.

2. The applicant’s stand was that although the said Jacinta had been living with the deceased, she was not married to him and her children were not sired by the deceased. This was notwithstanding the fact that they had lived together for over 18 years to the knowledge of the applicant, who had relocated to USA long before the deceased started living with the respondents’ mother.

3. After hearing the parties, the learned Judge was persuaded that the said non-disclosure was fraudulent, hence the revocation of the said grant. The Judge directed that a fresh grant of letters of administration be issued jointly to the applicant and Jacinta who would then file a fresh application for confirmation of the grant within 60 days from the date of the order. This would, of course, have given any party with an objection to the proposed mode of distribution time to move the High Court for their objections to be heard and their proposals on the mode of distribution considered.

4. However, instead of pursing that route the applicant moved this Court by way of appeal against the said ruling and contemporaneously filed this Notice of motion dated March 24, 2022 under rule 5(2)(b) of the Court of Appeal Rules, 2010. The applicant seeks stay of proceedings in the High Court in Succession Cause No 2254 of 2012 pending hearing and determination of this application and the intended appeal and stay of execution of any orders flowing from any proceedings taken subsequent and consequential to the ruling delivered on July 21, 2021 pending hearing and determination of this application and the intended appeal. The application is premised on the grounds that the applicant is aggrieved by the entire decision. The applicant avers that the intended appeal is merited and has a high probability of success and in the absence of stay it may be rendered nugatory.

5. The application is supported by the affidavit of Pauline Wambui Kimani reiterating the grounds in support of the motion. She further deposes that she is aggrieved with the decision which revoked the grant issued to her on January 4, 2013 and confirmed on November 5, 2013 in total disregard of the law. That the intended appeal may be rendered nugatory for the reason that the court ordered the entire estate of the deceased to revert to his name yet she had already transferred most of the said properties. Further, that she was 83 years old with health issues and largely depended on the income from the properties; and the respondents will not be prejudiced in any way since their mother was gifted a property during the deceased’s lifetime.

6. In response to the motion, Stephen Ngugi Njeri the 1st respondent filed a replying affidavit dated April 21, 2022 in which he avers that if stay is granted, the applicant may continue to intermeddle with the estate of the deceased and that she will continue to enjoy the proceeds of the estate alone in total exclusion of the respondents. That the applicant has failed to demonstrate what prejudice she shall suffer yet she lives and works in the USA and that she has other sources of income.

7. The motion was canvassed by way of written submissions with oral highlighting by Ms Ndirangu and Mr Kimani learned counsel appearing for the applicant and the respondent respectively.

8. The applicant submits that she has an arguable appeal in that the draft memorandum of appeal raises weighty issues in regard to sections 26 and 29B of the Law of Succession Act. She has placed reliance in the decision of Attorney General v Okiya Omtatah Okoiti &another (2019) eKLR where this Court held that an arguable appeal is not one that must succeed but one which is not frivolous or idle.

9. Further, that if the estate reverts to the deceased then the applicant will need to start the process of reverting the titles to the deceased’s name, yet she had sold some of the properties to third parties. This in her view will render the appeal nugatory.

10. The respondents oppose the application by submitting that unless the applicant satisfies the court that she has an arguable appeal or in the absence of stay, the appeal would be rendered nugatory, the court should not grant stay of execution. Further, that the High Court proceedings were filed by them on their own behalf as dependants of the deceased pursuant to section 3(2) as read with section 29 of the Succession Act. On the nugatory aspect, the court was urged not to grant the orders sought as there is nothing to be rendered nugatory.

11. We have considered the application, the rival affidavits, both written and oral submissions by both learned counsel and the applicable law.The purpose of rule 5(2) (b) of this Court’s rules is to preserve the substratum of the appeal. The principles that apply to applications of this nature are well settled. First the applicant has to demonstrate the appeal or intended appeal as the case may be, is arguable and secondly that in the absence of stay, the same shall be rendered nugatory. These principles were succinctly set out in Stanley Kang’ethe Kinyanjui v Tony Ketter [2013]eKLR.

12. We note that all the High Court did was to revoke the grant and order that the status quo ante, pertaining before the issuance and confirmation of the Grant be maintained. The court brought on board the 1st respondent as a co-administrator to represent his mother and sister to protect any rights they may have in the deceased’s estate. The applicant was not left out, nor did the court distribute any part of the Estate. In our view, the applicant should have filed her objections before the trial court for determination during the confirmation hearing and if aggrieved by the final distribution of the estate, challenge the final decision before this court on appeal. On the limb on arguability of the appeal, we are doubtful that the appeal, which is against an interlocutory ruling is arguable.

13. Even assuming the appeal is arguable, the second limb on the nugatory aspect has not been demonstrated. The subject matter of the appeal has actually been preserved by being reverted to the deceased to await distribution to the beneficiaries as will be determined by the trial court. The property will not therefore dissipate or go to waste.

14. In conclusion, we find this application falls short of the threshold set for rule 5(2)(b)of the Court of AppealRules applications and the same is hereby dismissed with no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. W. KARANJA................JUDGE OF APPEALF. A. OCHIENG................JUDGE OF APPEALL. KIMARU................JUDGE OF APPEALI certify that this is a true copy of the original.SIGNEDDEPUTY REGISTRAR