[2017] KEHC 9196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

SUCCESSION CAUSE NO. 518 OF 2012

IN THE MATTER OF THE ESTATE OF MAXWELL KINYANJUI MIRING’U (DECEASED)

MERCY MUTHONI KIROMO..................................1ST OBJECTOR/APPLICANT

MIRING’U KINYANJUI.............................................2ND OBJECTOR/APPLICANT

VERSUS

ROSEMARY ALICE KINYANJUI alias

ROSEMARY BALDWIN KINYANJUI...................1ST EXECUTRIX/RESPONDENT

DORCAS NYOKABI DOLORES KINYANJUI.....2ND EXECUTRIX/RESPONDENT

RULING

1. The application for determination is a notice of motion dated 23rd June, 2017 but filed in court on 28th June, 2017 wherein the applicant/objector sought for the following orders:

(a) That this application be certified urgent and be heard exparte in the first instance.

(b) That an order be granted for stay of the judgment by Justice Kimaru delivered on 21st June, 2017 and the decree ensuing therefrom pending hearing and determination of this application.

(c) That an order be granted for stay of the judgment by Justice Kimaru delivered on 21st day of June, 2017 and the decree ensuing therefrom pending hearing and determination of the intended appeal.

(d) That an order to issue preserving the estate of the deceased pending the hearing and determination of the intended appeal.

(e) That an order to issue restraining the respondents by themselves, their agents and or servants from in any way interfering with the 1st applicant’s quiet possession of the dwelling house situate on L.R. No. Kajiado/Kaputei North/4074 in Kitengela pending hearing and determination of the appeal.

2. Application which is brought under Sections 1A, 3A O42 rule 6 of Civil Procedure Rules 2010 and rule 73 of Probate and Administrtion rules is premised on grounds on the face of it and a supporting affidavit sworn on 23/6/2017 by the 1st applicant Mercy Muthoni Kiromo. In response, the 1st executrix/respondent filed a replying affidavit sworn by Rosemary Kinyanjui on 11th July, 2017 and filed on even date.

3. Briefly, on 21st day of June, 2017, Judge Kimaru delivered a judgment dismissing an objection filed by the 1st applicant/objector and her son Miring’u Kinyanjui the 2nd objector/applicant in which the 1st applicant claimed that she was a lawful wife of the deceased with whom they were blessed with two children among them the 2nd objector/applicant.

4. In his judgment, Judge Kimaru found that the 1st applicant had failed to prove that she was a wife to the deceased and that they were blessed with two children. According to Judge Kimaru, the objectors having failed to submit and or subject the second objector/applicant and his sister Nyokabi for DNA testing, the applicants had no proof that the deceased was a father to the second objector nor was he married to the 1st objector/applicant hence they were not beneficiaries and or dependants for purposes of succession in respect of the deceased’s estate.

5. According to the 1st applicant, she was a wife to the deceased having been married for the last 31 years before the deceased died. That they were blessed with two children one K (2nd objector) born 1982 and N a daughter born 1986. She avered that the failure to have a DNA done was partly orchestrated by the respondents who refused to cooperate. She claimed that, the house at Kaputiei is her matrimonial property in which she has been staying since the year 2012 and that before the deceased died, he had sold the home to his son the second objector.

6. On the other hand, the 1st respondent executrix denied her husband was married to the deceased and that the 1st applicant was a mere tenant to her house and therefore not beneficiary of her late husband’s estate. She urged the court to direct the 1st applicant to move out of her house at Kajiado/Kaputiei plot.

7. In submission, Mr. Irungu for the applicants urged the court to stay execution pending appeal as the applicants have a good and arguable appeal and that if the orders sought are not granted, the appeal may be rendered nugatory and that the appellants are likely to suffer substantial loss as they are likely to be evicted from their house. Mr. Irungu contended that, if the applicants were given a chance for the second applicant to undergo DNA test, the truth will be revealed and the applicant’s dependency shall have been proven. Counsel asserted that, there will be no prejudice or loss suffered if the orders for stay were allowed.

8. On the other hand, Ann Mbugua counsel for the respondents urged the court to dismiss the application on grounds that it was frivolous with no chances of success and that a tenant cannot forcefully stay in the house of the deceased. Counsel submitted that, the applicants having failed to file a notice of appeal cannot get the orders sought.

9. Mrs. Mbugua opined that, the court lacked jurisdiction to issue the orders sought as its jurisdiction has not been invoked properly. Counsel further submitted that the applicants will not suffer any substantial loss even if they moved out of the deceased’s house as the respondents were in a position to return the same or compensate should the appeal succeed. Counsel quoted a number of authorities among them Stanley Munga Githunguri vs Jimba Credit Cooperation Ltd (1988)eKRL, Law Society of Kenya vs Deyness Muriithi vs 34 others (2015) eKRL and Silverstate Ltd vs National Bank of Kenya (2016) eKRL all of which outlined the principles underlying grant of stay orders pending appeal interalia: proof by appellant that she has an arguable case and that appeal will be rendered nugatory if the orders sought are not granted.

10. I have considered the application herein, supporting affidavit, replying affidavit, submissions by both counsels and authorities quoted thereof. The underpinning principles for award of stay of execution orders pending appeal are clearly articulated and set out under order 42 rule (6) which provides that no appeal shall operate as stay and that no order of stay shall be made unless: the applicant proves that he is likely to suffer substantial loss; that the application has been made without unreasonable delay; that security as may be ordered by the court has been made. Besides, the applicant must prove that he has an arguable case and that the appeal may be rendered useless if the orders are not granted.

(See Carter and Sons Ltd vs Deposit Protection Fund Board and two others Civil Application No. 291/97 (unreported).

11. Justice Ringera as he then was captured succinctly the principles underpinning grant of an order for stay of execution pending appeal in the case of Global Tours and Travels Ltd. Nairobi HC Widing up cause No. 43/2000. The learned judge held as follows:

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be executed in the interest of justice…. The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expedicious disposal of cases, the prima facie merits of the intended appeal in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”.

12. It is trite law that a court has unfettered discretion to issue or not to issue orders of stay pending appeal. However, in exercise of its discretion, the court must balance the interest of justice without occasioning hardship to either party.

In the instant case, the 1st applicant claimed that she was married to the deceased for over 32 years and that the two were blessed with two children who are adults. She gave a detailed testimony revealing joint business and bank accounts managed in her name and that of the deceased. She also argued that, she could not have moved to the deceased’s home forcefully if she was not a wife. In the interest of justice, I am persuaded to believe that she needs an opportunity to exhaust her legal redress.

13. The application herein was filed within one month from the time of delivery of judgment which therefore means it was filed within reasonable time. Regarding whether the applicant has an arguable case, there is no definitive approach in law. The court will exercise its discretion depending on the merits of each case. An arguable case is not necessarily equivalent to a case with high chances of success. It is a matter of reasonable, judicious and conscientious assessment by the trial court thereby attaching some weight on the evidence placed before it to arrive at a decision that the applicant has a prima facie case calling for further evaluation. This is an issue which a court to which the appeal is preferred will properly address.

14. Will the applicants appeal be rendered nugatory if the application is not allowed? Stay orders pending appeal are conservatory in nature. They are not meant to assist or frustrate any of the litigants. What prejudice are the applicants likely to suffer if the orders are not granted? Alternatively, what prejudice are the respondents likely to suffer if the orders are granted? According to the 1st applicant, if the orders are not granted, the estate will be shared out and she will be evicted from her matrimonial home”.

15. Indeed there are several properties consisting the estate of the deceased including the disputed house. There is no guarantee that the respondents are in a position to compensate the applicants incase the estate is shared out and property disposed off. Secondly, if the application is dismissed, the 1st applicant will be kicked out of what she calls her matrimonial home for the last 5 years. She definitely will suffer substantial loss if she has no means of renting another house. On the other hand, the respondents will not suffer any prejudice if the orders were granted and the appeal heard and determined on merit. Is the court properly seized of this matter the applicants having failed to file a notice of appeal? I do not find the omission to be so grievous so as to occasion a miscarriage of justice. In any event, the omission has been regularized as there is one already filed on 12/7/2017. Further, I find the omission curable under Article 159 (2) which provides that judicial decisions shall be made without undue regards to technicalities.

16. Accordingly I do find that application herein is merited and the same is allowed in terms of prayers 3, 4, 5 on condition that the intended appeal is filed within 30 days from the date of delivery of this ruling failure to which the orders granted herein shall lapse automatically.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2017.

J. N. ONYIEGO (JUDGE)

In the presence of:

...............................................Counsel for applicant

...............................................Counsel for respondent

...............................................Court Assistant