[2023] KEHC 26433 (KLR)

Kukai v Bom Kapngetir Primary School (Miscellaneous Civil Application E015 of 2023) [2023] KEHC 26433 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26433 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application E015 of 2023

JRA Wananda, J

December 8, 2023

Between

Joseph Toroitich Kukai

Appellant

and

Bom Kapngetir Primary School

Respondent

Ruling

1. This matter arises from a Ruling delivered on 28/10/2022 in Eldoret Chief Magistrate’s Court Succession Cause No. 101 of 2016 relating to an Application seeking revocation of a Grant of Letters of Administration and the subsequent Confirmation thereof.

2. The instant Application before this Court is the Notice of Motion dated 10/01/2023 filed through Messrs Anassi Momanyi & Co. Advocates. It seeks the following orders:i.Leave be and is hereby granted to the applicant to pursue an appeal outside the requisite thirty (30) days period

3. The Application is expressed to be brought under Section 79 of the Civil Procedure Act, Order 50 of the Civil Procedure Rules and Section 47 of the Law of Succession Act. The grounds of the Application are as set out on the face thereof and it is supported by the Affidavit sworn by the Applicant, Joseph Toroitich Kukai (who was also the Petitioner-Administrator in the Magistrates’ Court Succession Cause).

4. In the Affidavit, the Applicant deponed that the Ruling in the subordinate Court was delivered without his Advocate’s knowledge, that he seeks to challenge the Ruling on appeal, the time within which to pursue an appeal has lapsed, his Advocate learnt of the Ruling on 16/12/2022 and notified him of the same on 9/1/2023, the Application is not pursued after inordinate delay and is being pursued in the best interest of justice, there is no prejudice that the Respondent stands to suffer if the Application is allowed, and that the intended appeal shall deal with the issue of the capacity to object to the grant of Letters of Administration and seek revocation thereof.

Response 5. The Respondent opposed the Application vide the Grounds of Opposition dated 8/05/2023 and filed through the office of the Attorney General. The grounds advanced are that the orders in the impugned Ruling dated 28/10/2022 are not appealable as of right under Order 43 Rule 1 of the Civil Procedure Rules, the subject of the proceedings and the intended Appeal arise from a Ruling in an interlocutory matter and the main suit is still pending for hearing, no determination has been made by the trial Court on the substantive matter and the Ruling merely ordered the matter to be set down for hearing, there is no draft Memorandum of Appeal annexed to the Motion to assist the Court in determining the chances of success on appeal, the Applicant has not demonstrated that he has good and sufficient cause for not filing the Appeal within time to enable him benefit under the proviso to Section 79 of the Civil Procedure Act, and that the Application is a fishing expedition and that the delay is inordinate.

Hearing of the Application 6. The Application was canvassed by way of written submissions. Pursuant to directions given, the Applicant filed his Submissions on 3/07/2023 while the Respondent filed on 24/07/2023.

7. I also have on record Supplementary Submissions from the Applicant, filed on 27/07/2023. Since the date I fixed this matter for Ruling was 26/07/2023 when no party attended Court but after satisfying myself that both sets of Submissions were on record, the Supplementary Submissions must have been filed subsequently and irregularly “sneaked” into the record without leave of the Court. It does not matter how justifiable the reasons the Applicant’s Advocates had in filing the Supplementary Submissions, such act is unacceptable and the Court abhors it.

8. Nevertheless, I have looked at the Supplementary Submissions and I am satisfied that it only seeks to clarify points of law raised in the Respondent’s Submissions. The same is also very brief. In the circumstances, I find that the same causes no prejudice to the Respondent and I will therefore still consider it.

Applicant’s Submissions 9. Counsel for the Applicant submitted that the Applicant is the Administrator of the estate of Kukai Sakong Toroitich - Deceased, that the Respondent sought revocation of the Grant of Letters of Administration to the estate of the deceased, an action pursued without having the capacity to do so, a decision was made on 28/10/2022 without the knowledge of the Applicant and he is aggrieved by the decision, however, by the time that he became aware of the decision, the time within which to appeal had lapsed, Section 47 of the Law of Succession Act empowers the Court to entertain the Application, an order for extension of time to file appeal is discretionary and must be exercised judiciously, the factors to be considered were set out by the Court of Appeal in the case of Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR, the Ruling was delivered without notice and in the absence of the parties, the Applicant’s Advocate learnt of the Ruling on 16/12/2022 when he went to inquire on the position of the case, he notified the Applicant on 9/01/2023, the present Application was then filed on the next day, 10/01/2023, and that there has been no inordinate delay. He cited the case of Kihungi v Kihungi [1989] eKLR and added that the Application is not an afterthought, there is nothing advanced by the Respondent supporting the assertion that the Application amounts to a fishing expedition or that the Application is an afterthought, and that there is no evidence to demonstrate what prejudice the Respondent will suffer if the Application is granted.

Respondent’s Submissions 10. Counsel for the Respondent submitted that the trial Magistrate only ordered for the matter to be set down for hearing viva voce before a decision could be made and that the Magistrate was of the view that the issue at hand could not be solved on Affidavit evidence. On whether an Appeal lies as of right against the Ruling, Counsel submitted that an Appeal does not lie against each and every order, and that leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration.

11. She cited Order 43(1) of the Civil Procedure Rules and listed the orders against which an appeal lies as of right. She then submitted that in the instant case, the orders do not fall within the ambit of Order 43(1) and cited the case of Gloria Mauncho Onyambu versus Tim Liko t/a Liko & Anam Advocates, Civil Appeal No. E515 of 2021. She added that in the instant case, leave from the Court that delivered the Ruling is a prerequisite. She cited the cases of Nyutu Agrovet vs Airtel Networks Ltd [2015] eKLR, Serephen Nyasani Menge vs Rispah Onsasa [2018] eKLR, Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] eKLR and Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others, CA 290 of 2012 and submitted that the Applicant is therefore fatally defective.

12. Counsel submitted further that the Applicant is trying to” jump the gun” by initiating the present proceedings while the substantive matter is still pending before the Magistrates’ Court, that the Application is premature and speculative in that it is brought on the assumption that the Applicant’s case before the lower Court had naturally collapsed simply because of the Ruling, the Magistrate only granted prayer (viii) of the Application which sought an order of inhibition to be placed on various parcels of land, the purpose of the order was to ensure that the status quo is maintained and that the suit property is preserved pending hearing and determination of the Summons seeking to revoke the Grant.

13. She further contended that the Applicant has not annexed a draft Memorandum of Appeal to assist the Court in determining the Applicant’s chances on appeal, and that in any event, the intended appeal is not arguable. Counsel however conceded that where is no draft Memorandum of Appeal annexed, the Court can still discern the grievances intended to be taken up on appeal from any other supportive facts.

14. It was Counsel’s further submission that extension of time is not a right of a party, it is an equitable remedy that is only available to a deserving party, at the discretion of the Court. She cited Section 79G and also the case of Edith Gichugu Koine v Stephen Njagi Thithi [2014] eKLR and submitted that the Court ought to take into account several factors, specifically, the period of delay, reasons for the delay, degree of prejudice to the Respondent if the Application is granted, and whether the matter raises issues of public importance, amongst others. She also cited the case of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR and added that the Applicant does not have any reason as to why he did not file his Appeal within the prescribed timelines, and that the Applicant has chosen to deceive the Court that he was not aware of the Ruling yet he participated in the proceedings. She also cited the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission [2014] eKLR.

Applicant’s Supplementary Submissions 15. On whether the Ruling is appealable, Counsel for the Applicant submitted that one does not need to go outside the provisions of the Law of Succession Act, that the Respondent has failed to make reference to Section 50(1) of that Act, the Respondent is therefore mistaken to proceed on the understanding that one has to seek reliance on the Civil Procedure Act and Rules, there is an undoubted right of appeal under Section 50(1) of the Law of Succession Act, and that the right to pursue an Appeal is as of right and one does not need to seek leave to do so, the right is unqualified. He cited the case of Obange & Another v Oganyo & 4 Others, Civil Appeal No. 033 of 2021 (2022) KEHC 14401 KLR.

16. He added that the complaint of the Applicant is that the Respondent does not meet the requirements of the law even without being accorded a hearing to file an objection and/or an application seeking revocation of the Grant, the Respondent is neither a dependent nor a creditor to the estate, the subordinate Court ought to have dealt with the Application on the basis of Affidavit evidence, the oral hearing will not change the applicable law and the criteria that the Respondent ought to satisfy, and that the Respondent’s claim, if any, fell in the province of the Environment & Lands Court, not a Succession Cause. He cited the case of John Mutio Mutua (deceased) [2021] eKLR.

17. In conclusion, Counsel argued that the Application is merited and cited the case of Epharus Nyambura Nduati (deceased) [2021] eKLR.

Analysis and Determination 18. Upon carefully considering the record including the Affidavits, Submissions and authorities presented, the issues that arise for determination, in my view, are the following:i.Whether the order the subject of these proceedings is appealable as a matter of right, without leave.ii.Whether leave to file Appeal out of time should be granted.

19. I now proceed to determine the said issues.

i. Whether the order the subject of these proceedings is appealable as a matter of right, without leave 20. In opposing the Application, Counsel for the Respondent cited Order 43(1) of the Civil Procedure Rules and enumerated the orders listed therein against which an appeal expressly lies as of right, without leave. She then submitted that the orders impugned herein are not amongst those listed and do not therefore fall within the ambit of Order 43(1). According to Counsel therefore, the Applicant ought to have first sought and obtained leave to appeal from the Court of first instance.

21. In answering this question, I remind litigants to appreciate that Probate and Succession matters are to be handled strictly under the Law of Succession Act, Cap 160 which is a self-regulatory statute and only the specified provisions of the Civil Procedure Rules are imported into it. On this point, I cite Rule 63 of the Probate and Administration Rules, which provides as follows:“63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.

22. In respect thereto, Kemei J, in the case of Re Estate of Wilson Ngumbi Kathesye (Deceased) [2020] eKLR, observed as follows:“7. ……... I do not understand why the Applicants had to resort to other provisions yet the Law of Succession Act not only provides the substantive law but also rules of procedure regarding matters to do with succession. The said Act is self-containing and parties need not delve into other provisions. The only entry point of the Civil Procedure Rules is vide Rule 63 of the Probate and Administration Rules. The Rules cited by the Applicants herein appear not permitted under Rule 63 of the Probate and Administrative Rules. The intention of Parliament when enacting the Law of Succession Act was that all matters to do with succession should be governed by the said Act. The Court of Appeal seemed to be of this view when it held in the case of Josephine Wambui Wanyoike –vs- Margaret Wanjiru Kamau & Another [2013] eKLR as follows:-“We hasten to add that the law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and rules of procedure. In few instances where need to supplement the same has been identified some specific rules have been directly imported into the Act through its rule 63(1)”

23. Further, in John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR, Mativo J, (as he then was) stated as follows:“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. ………………..”

24. From the foregoing, it is clear that Order 43(1) of the Civil Procedure Rules cited by Counsel for the Respondent is not applicable to the present Application. The requirement under that provision for one to obtain leave to appeal does not therefore arise in this instant matter.

25. This being an Application arising under proceedings conducted under the Law of Succession Act, the correct provision is Section 50(1) of the Law of Succession Act as read with provisions of the Act which donate inherent powers to the Court, namely, Section 47 of the Act and Rule 73 of the Probate and Administration Rules.

26. Section 50(1) provides as follows:“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.”

27. Section 47 then provides as follows:“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.…………………………………………………...”

28. On its part, Rule 73 of the Probate and Administration Rules provides as follows:“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

29. In the circumstances, I do not find any provision of law that declares the order the subject of these proceedings as not being appealable as a matter of right. I do not therefore find leave to Appeal to be a prerequisite for the present Application.

ii. Whether leave should be granted to Appeal out of time 30. The present Application is expressed to be brought under Section 79 of the Civil Procedure Act, Order 50 of the Civil Procedure Rules and Section 47 of the Law of Succession Act. As already stated above, the Law of Succession Act is a self-regulating statute and save where expressly provided, the provisions of the Civil Procedure Act and Rules would not, save where expressly provided, apply to proceedings under the Law of Succession Act.

31. The citation of Section 79G of the Civil Procedure Act and Order 50 of the Civil Procedure Rules therefore appears misplaced.

32. As already stated, this being an Application arising under proceedings conducted under the Law of Succession Act, the correct provision is Section 50(1) of the Law of Succession Act as read with provisions of the Act which donate inherent powers to the Court, namely, Section 47 of the Act and Rule 73 of the Probate and Administration Rules.

33. Be that as it may, it is my belief that the broad principles applicable in determination of Applications for extension of time for filing appeals, whether in probate or Succession proceedings or in any other matter, are basically the same. Regarding extension of time, the Supreme Court, while handling an Application for extension of time in Civil Application No. 3 of 2016 - County Executive of Kisumu –vs- County Government of Kisumu & 7 Others held as follows: -“(23)It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court. Further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The court delineated the following as: -“the underlying principles that a court should consider in exercise of such discretion:1)Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2)A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3)Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4)Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.

34. I appreciate that in holding as it did, the Court was dealing with Rules 32 and 53 of the Supreme Court Rules. I however trust that the holding nevertheless lays down the general principles to be applied in Applications for extension of time no matter the statutory basis.

35. I also cite the Court of Appeal decision in the case of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where, although Odek JJA was dealing with an Application brought under the Court of Appeal Rules on extension of time to Appeal, the guidelines he gave are very much applicable herein. He stated as follows:“8. ……. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See FAKIR MOHAMED V JOSEPH MUGAMBI & 2 OTHERS, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.”

36. Section 50(1) of the Law of Succession Act does not however give timelines within which an Appeal to the High Court is to be lodged. It is therefore debatable whether one even needs to seek or obtain leave to extend the time to appeal in the circumstances. That is however a debate for another day, if and when properly brought for determination.

37. Although no time is prescribed for lodging an appeal under Section 50(1) of the Law of Succession Act, it is logical that an Applicant must act within a reasonable period of time. Indeed, Section 58 of the Interpretation and General Provisions Act stipulates as follows:“Where no time is prescribed or allowed within which anything shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises”

38. Coming back to this instant matter before me, regarding the length of delay, it is evident from the Pleadings on record that the impugned Ruling was delivered on 28/10/2022. The Applicant and his Counsel depone and submit, respectively, that the Counsel learnt of the Ruling on 16/12/2022, that he informed the Applicant about it on 9/01/2022 and that they then filed the present Application on the next day, 10/01/2023. What has not been explained, which I find curious, is why having learnt of the Ruling on 16/12/2022, Counsel kept the information to himself until 9/01/2023, more than 3 weeks later before informing his client.

39. I would readily term that 3 weeks delay to inform the client to be inordinate save that I would not, in the circumstances of this case, wish to punish the client for the mistakes, it at all, of his Advocate.

40. Regarding arguability of the intended Appeal or the weight of the matters sought to be appealed against or chances of success, I note that the issue sought to be canvassed is whether a person who is not a “survivor” or “beneficiary” or “dependant” of an estate as defined under Section 29 of the Law of Succession Act, and in this instant a school, can competently object to or apply for revocation or annulment of a Grant of probate. Without delving too much into the appurtenant legal position lest I be accused of prejudging the matters before the trial Court, I only state that I find the point raised to be an arguable point of law which may need to be canvassed further at an appellate stage.

41. I am aware that the Magistrate did not make a final determination of the matter and instead, directed that the issue, and others raised, be canvassed by way of viva voce evidence. Contrary to the submissions by the Respondent’s Counsel, I am satisfied that the directions given qualify to be termed as a “determination” since it embodies a “decision” of the Court. Had it been otherwise, the Magistrate would not have issued it as a formal Ruling the way she did. The orders are therefore, in my view, appealable.

42. I am also alive to the fact that the Applicant failed to exhibit a draft Memorandum of Appeal which ought to have been done so as to enable the Court interrogate and form an opinion on the nature and strength of the Appeal. However, as Counsel for the Respondent herself has conceded, even where no draft Memorandum of Appeal is annexed, the Court can still discern the grievances intended to be taken up on appeal from any other supportive facts. Upon perusing the record before me and the Submissions from the parties, I am clear to my mind that the matters intended to be appealed against are evident to both parties and the Court, too, can easily discern the same.

43. Applying the principles set out in the various authorities cited, to the facts of this case, I find that the Applicant has tendered sufficient explanation as to why there was delay in filing the Appeal within time.

44. I am also very much aware that, in the absence of any order of stay of proceedings, it is very possible that, since the substantive Application before the trial Court is ongoing, the same may be long concluded by the time that the intended Appeal is filed, heard and determined. Be that as it may, I leave that to nature to take its own course.

Final Orders 45. The upshot of my findings above is that the Application succeeds. Consequently, I rule as follows:i.The Notice of Motion dated 10/01/2023 is hereby allowed.ii.The Applicant is given leave to file the intended Appeal within fourteen (14) days from the date hereof.iii.For his delay to file the Appeal, the Applicant shall bear the costs of this matter

DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF DECEMBER 2023. .....................WANANDA J.R. ANUROJUDGE