[2023] KEHC 26566 (KLR)

Make & another v Maake & another (Civil Appeal E039 of 2022) [2023] KEHC 26566 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26566 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E039 of 2022

WA Okwany, J

December 14, 2023

Between

David Amenya Make

1st Appellant

Reuben Amenya Make

2nd Appellant

and

Mary Moraa Maake

1st Respondent

Jeremiah Misiani Maake

2nd Respondent

(Being an Appeal against the Ruling of Hon. M. C. Nyigei – PM (Nyamira) dated and delivered on 24th August 2022 in the original Nyamira CMCC Succession Cause No. 7 of 2019)

Judgment

Background 1. The Appellant herein, David Amenya Maake, filed the application dated 18th January 2022 in the trial court seeking the closure of the Nyamira CM Succession Cause No. 7 of 2019. He also sought the revocation and annulment of all the orders issued on the said lower court file. The application was premised on the grounds that: -a.There existed a similar file in Kisii Law courts being Kisii High Court Succession Cause No. 241 of 2012 involving the estate in question.b.That the Kisii High Court case was filed prior to the Lower Court succession case.c.That the Respondents were aware of the Kisii High Court case.d.The existence of this cause amounts to res judicata (sic) and multiplicity of suits.

2. The trial court dismissed the said Application and directed the parties to file an Application for confirmation of Grant.

3. Dissatisfied with the decision of the trial court, the Appellant filed the instant appeal in which he listed the following grounds: -1. That the ruling of the court was against the weight of evidence.2. That the trial magistrate erred in law in finding that a sale of an estate by a beneficiary does not amount to intermeddling.3. That the trial court erred in law in making a finding that Kisii High Court Succession Cause No. 241 of 2012 was dismissed.4. That the trial magistrate lacked jurisdiction to determine this cause since in her Ruling dated 16this May 2020, she disqualified herself on pecuniary jurisdiction yet on 24th August 2022 she made a finding on the same cause.

4. The Appeal was canvassed by way of written submissions which I have considered. A perusal of the court file reveals that the Appellant did not file a record of appeal prior to the admission of the appeal for hearing. I note that even though the Appellant herein acts in person, this cannot be an excuse for failing to abide by the rules which require that the complete record of appeal be filed before the appeal can be set down for hearing.

5. The failure to file the record of appeal notwithstanding, I am in the interest of justice and owing to the age of this matter, still minded to determine the appeal based on the records contained in the lower court file that has been availed before this court.

6. The duty of a first appellate court was explained in the case of Kariuki Karanja vs. R (1986) KLR 190 thus: -“On a first appeal from a conviction by a judge or a magistrate, the appellant is entitled to have the Appellate Court's own consideration and view of the evidence as a whole and its own decision thereon. The Court has a duty to rehear the case and reconsider the materials before the Judge or Magistrate with such materials as it may have been decided to admit.”

7. The gist of the Appellant’s case was since there was an earlier succession cause before Kisii High Court, Cause No. 7 of 2019 in the Chief Magistrate’s Court at Nyamira should have been closed. The Appellant further submitted that the orders issued in Nyamira CM Succession No. 7 of 2019 ought to be vacated and proceedings therein stayed indefinitely.

8. The Respondents did not file any submissions before this court or at the trial court.

9. A perusal of the trial court’s impugned ruling reveals that besides the finding that all the parties to the case had intermeddled with the estate of the deceased, the said court also found that there was no basis for the granting of the orders sought in the application dated 18th January 2022.

10. I have perused the proceedings in Kisii HC Succ. Cause No. 241 of 2012 which the Appellant claimed was still pending before the said court. I note that through an order issued on 16th September 2015, the said case was transferred to Nyamira High court following the establishment of a High Court at Nyamira and registered as Nyamira HC Succ. Cause No. 192 of 2015. Subsequently, through an order issued on 30th September 2016, the Nyamira High Court case was transferred to the Lower Court on the basis that the value of the estate was less than 20 Million. The Nyamira Lower Court Cause was thereafter registered as Nyamira PM Succ. Cause No. 167 of 2016.

11. Having regard to the above narration of the sequence of events relating to the movement of the Succession Cause from Kisii High Court to Nyamira High Court and subsequently to Nyamira Principle Magistrates Court, I find that the Appellant’s contention that this matter is sub judice owing to the existence of another succession cause in Kisii High Court is incorrect.

12. It is however not clear how Nyamira Succession Cause No. 7 of 2019 found its way to the said court considering the existence of Nyamira PM Succ. Cause No. 167 2016 that I have already referred to hereinabove. It is possible that the parties to this succession cause were not aware of the transfer of their case from Kisii High Court to this court and subsequently to the Lower Court at Nyamira thus leading to the filing of a fresh succession cause. The fate of the Lower Court file No. 167 of 2016 is also not clear.

13. The positions in the above cases notwithstanding, I note that the lower court confirmed the grant in Nyamira Succession Cause No. 7 of 2019 on 9th November 2022. To my mind, the confirmation of grant means that the instant appeal has for all intents and purposes been overtaken by events.

14. The order that commends itself to me, therefore, is to dismiss the appeal with no orders as to costs but with a rider that the Appellant herein acquaints himself with the certificate of confirmation of grant issued on 9th November 2022 so that he can decide on his next cause of action.

15. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE