[2002] KECA 188 (KLR)
The Court of Appeal held that the High Court's order requiring the appellants to seek leave before making further applications in the succession cause was proper and within the court's inherent jurisdiction. The order did not permanently bar the appellants from accessing the court but was a necessary measure to...
Source-derived case information.
- Citation
- [2002] KECA 188 (KLR)
- Parties
- Appellant: Morris Mutuli; Appellant: Wycliffe Mutuli; Respondent: Alice Mutuli Kola; Respondent: Phanice Achando Mutuli; Respondent: Dorothy Achitsa Mutuli
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 236 of 2000
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Succession Proceedings, Grant of Letters of Administration, Revocation of Grant, Inherent Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Mutuli
Appellant
Wycliffe Mutuli
Appellant
Alice Mutuli Kola
Respondent
Phanice Achando Mutuli
Respondent
Dorothy Achitsa Mutuli
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court erred in restricting the appellants' right to make further applications in the succession cause except with leave of court.
- 2 Whether the order restricting further applications violated the appellants' right to access to justice.
- 3 Whether the High Court had jurisdiction to make such an order under the Probate and Administration Rules.
Ratio Decidendi
The Court of Appeal held that the High Court's order requiring the appellants to seek leave before making further applications in the succession cause was proper and within the court's inherent jurisdiction. The order did not permanently bar the appellants from accessing the court but was a necessary measure to prevent abuse of process and to protect the interests of other beneficiaries, particularly the young children of the deceased. The court found that the appellants' complaints lacked merit, as the restriction was justified by their conduct in filing numerous applications that delayed the administration of the estate. The High Court acted in accordance with Rule 73 of the Probate and...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU
CORAM: KWACH, OMOLO & TUNOI, JJ.A.
CIVIL APPEAL NO. 236 OF 2000
BETWEEN
MORRIS MUTULI .......................................1ST APPELLANT
WYCLIFFE MUTULI .................................2ND APPEALLAND
AND
ALICE MUTULI KOLA ................................1ST RESPONDENT
PHANICE ACHANDO MUTULI ......................2ND RESPONDENT
DOROTHY ACHITSA MUTULI ........................3RD RESPONDENT
(Appeal from the ruling and order of the High Court of Kenya at Kakamega (Mr. Justice Tanui) dated 9th june, 2000
in
H.C.SUCCESSION CAUSE NO. 359 OF 1995)
***************
JUDGMENT OF THE COURT
The appellants Morris Mutuli and Wycliffe Mutuli have appealed to this Court against that part of the decision of Tanui J dated 9th June, 2000 by which the learned Judge restricted the right of the appellants to make further applications in the succession cause he was hearing, except with Thhies appepremlilsasnitosn . were the sons of the late William Mutuli (the deceased) who died on 25th October, 1994. The deceased left behind 4 wives, numerous children and a substantial estate comprising parcels of land, cash in the bank and other assets. He died intestate but a grant of letters of administration intestate was issued to his wives Alice Mutuli, Phanice Mutuli and Dorothy Mutuli , the respondents, on 25th October, 1996.
The appellants were unhappy with the grant being made to the respondents and on 28th March, 2000, they applied under section 76 of the Law of Succession Act (Cap 160) for the revocation of the grant. They set down the grounds upon which they sought the order of revocation one of which was that the grant was issued without a petition being filed. That allegation was patently false and the appellants knew as much.
The learned Judge dismissed the application and at the end of his ruling he said:-
"I note that there have been numerous applications in this cause which as Mr Fwaya has printed out have deliberately delayed due and proper administration of this estate and hardship is likely to be caused to some of the beneficiaries especially young children of the deceased. For this reason I direct that no further application should be made except with my consent."
That is the order which the appellants are complaining about in this appeal. They say it restricts their right to unimpeded access to the judicial process; that they were not given an opportunity to be heard before the order was made; and that there was no prayer for it in the application. There is really no substance in any of these complaints. The learned Judge did not say that the appellants were permanently barred from making any application. All he said was that such applications would be subject to the consent of the court being obtained. That is a perfectly proper order for a court to make to ensure that a party does not manipulate the process of the court to his own advantage and to the detriment of innocent parties. The Judge gave his reason for the restriction which was that hardship was likely to be caused to some of the beneficiaries and in particular the deceased's young children. That is the kind of order the Judge was entitled to make, and had the power to make, in exercise of his inherent jurisdiction and was in full accord with rule 73 of the Probate and Administration Rules which states:-
"73. 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."
The appellants who are mature adults cannot be allowed to embark on a course of conduct in relation to the administration of the estate of the deceased which would be likely to prejudice the rights of other beneficiaries, and in particular young children some of whom may be younger than or of the same age as their own children. That is to say the least selfish.
For these reasons this appeal must fail and it is dismissed with no order as to costs.
Dated and delivered at Kisumu this 29th day of November, 2002
R. O. KWACH ...................
JUDGE OF APPEAL
R.S.C. OMOLO ..................
JUDGE OF APPEAL
P. K. TUNOI .................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR