[2024] KEHC 1983 (KLR)

Mwajirani & another v Mwajirani & another (Civil Appeal E036 of 2023) [2024] KEHC 1983 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] KEHC 1983 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E036 of 2023

G Mutai, J

March 1, 2024

Between

Rehema Badi Mwajirani

1st Appellant

Hanifa Badi Mwajirani

2nd Appellant

and

Said Badi Mwajirani

1st Respondent

Salim Badi Mwajirani

2nd Respondent

Ruling

1. Before this court is a Notice of Motion application dated 23rd November 2023 seeking the following orders:-a.Spent;b.Spent;c.That pending the hearing and determination of the appeal herein, this honourable court be pleased to issue an order staying the entire proceedings in Mombasa Kadhi’s Court Succession Cause No. E237 of 2023;d.That this honourable court be pleased to grant any other and further orders it deems fit to grant; ande.That costs of this application be provided for.

2. The application is premised on the grounds therein and the supporting affidavit of Rehema Badi Mwajirani sworn on 23rd November 2023. She stated that the respondents petitioned the Kadhi’s Court for a grant of letters of administration. In response, the Appellants/Applicants filed an objection. In his ruling of 21st November 2023, the honourable Kadhi dismissed the said objection without giving them an opportunity to be heard, contrary to Article 50(1) of the Constitution.

3. She further stated that the honourable Kadhi denied them the right to a fair trial, and as a result, they have preferred an appeal against the said ruling. If orders for a stay of proceedings are not granted, the appeal shall be rendered nugatory.

4. In response, the respondents filed a replying affidavit sworn by Said Badi Mwajirani on 13th December 2023. He stated that despite the appellants having an equal right to petition for the grant of letters of administration and the 1st appellant being in possession of the title deed, they have never petitioned the court for the grant of letters of administration, leaving them with no option but to petition for the same. Their reason is that the appellants have benefited from the estate for a period of 11 years via rent income amounting to Kes.3,762,00/-.

5. He further stated that their intention was to have all beneficiaries benefit from the estate, not just a few, and that the applicants’ actions were meant to allow them to continue benefitting from the estate exclusively. The Kadhi’s ruling came with a hearing date set for 27th November 2023. He urged the court to revert the matter to the Kadhi’s Court.

6. The application was canvassed through oral submissions on 23rd January 2024.

7. Mrs Mohamed, counsel for the applicant, submitted that the issue for determination is whether the appeal is arguable, whether it would be rendered nugatory if the orders sought are not granted and whether it is in the interest of justice to grant an order of stay.

8. Counsel referred the court to rule 87 of Kadhi’s Courts (Procedure and Practice) Rules, 2020 and Order 42 Rule 6 of the Civil Procedure Rules. She submitted that the appeal is arguable and that the Kadhi made an error by finding that the appellants had not given proper grounds for their objections. If the orders sought are not granted, the appeal will be rendered nugatory, and proceedings before the Kadhi Court will proceed, resulting in a wastage of judicial time if the appeal succeeds. He urged the court to allow the application.

9. The 1st respondent, on the other hand, submitted that the decision of the Kadhi was fair and that it came with a hearing date, but they couldn’t be heard due to the appeal. The applicants failed to petition for grant of letters of administration despite having all the papers forcing them to and that every child has a right to be an administrator.

10. In rejoinder, Mrs Mohamed submitted that her clients are seeking to be administrators and that the Kadhi denied that right when he denied them the right to be heard.

11. I have considered the application, the response and the oral submissions by both counsel and the issue that emerges for determination is whether the order sought should be granted.

12. The court in the case of Port Florence Community Health Care v Crown Health Care Limited [2022] eKLR in discussing stay of proceedings stated:-“Notably, the conditions under which either the trial court or an appellate court may order stay of proceedings pending an appeal have not been specified…The court therefore has to rely on the settled principles on when proceedings may be stayed pending appeal. The question of whether or not to grant an order for stay of proceedings is a discretionary one. This discretionary power must be exercised judiciously. The court has to consider if it will be in the interests of justice to grant the same. The underlying interest ought to be that the appeal should not be rendered nugatory.”

13. Further, the court in the case of Kenya Wildlife Service v James Mutembei [2019] eKLR stated:-“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus:-“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 exercised 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 expeditious 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” (emphasis added).”

14. The applicants have averred that they have an arguable appeal and that if the order sought is not granted, the appeal will be rendered nugatory. The court, in the case of Maryanne Camene Ojiambo v Samwel Muchoki [2021] eKLR defined an arguable appeal by stating:-“Plainly, therefore, the appeal is arguable, bearing in mind that an arguable appeal is not necessarily an appeal that must ultimately succeed. In Kenya Tea Growers Association & Another vs. Kenya Planters & Agricultural Workers Union (supra), the Court of Appeal made this clear when it held that:“He (the applicant) need not show that such an appeal is likely to succeed. It is enough for him to show that there is at least one issue upon which the Court should pronounce its decision.”

15. I have considered the grounds of appeal raised in the Notice of Appeal. It is my view that the applicants have an arguable appeal. The issue in this appeal is whether the learned Kadhi properly considered their objection. If the learned Kadhi proceeds with the hearing of the succession cause, having dismissed the objection, it is likely that the Appellants/Applicants' appeal will be rendered nugatory and academic. It is, therefore, fair to issue the extraordinary remedy of a stay of proceedings in this matter.

16. I, therefore, find and hold that the application before the court has merit. The same is hereby allowed. Parties will however bear own costs.

17. Orders accordingly.

DATED AND SIGNED AT MOMBASA THIS 1ST DAY OF MARCH 2024. GREGORY MUTAIJUDGEIn the presence of:-Ms. Wanjiku Mohamed for the Appellants/Applicants;The Respondents – Absent;Arthur – Court Assistant