[2022] KEHC 13696 (KLR)

Mwaronja v Mworia (Succession Cause 480 of 2011) [2022] KEHC 13696 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13696 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 480 of 2011

EM Muriithi, J

October 6, 2022

Between

Eunice Mwaronja

Applicant

and

Henry Mworia

Respondent

Ruling

[1]The applicant seeks to appeal against an order of this Court removing an inhibition placed on an estate asset pending the hearing and determination of the succession proceedings herein. By its ruling of 30th May 2022, the Court granted an application by Summons dated 22/7/2019, where the petitioner (respondent herein) sought that the “order of inhibition, caution restriction placed on LR. No. Kiirua/Naari/140 be lifted” citing need to implement the Judgment of the Court dated 12/4/2018, which dismissed the Objector’s application for revocation of grant.

[2]The Objector is aggrieved by that ruling and seeks to appeal to the Court of Appeal and has, therefore, by a Notice of Motion dated 11/6/2022 sought a stay of execution in specific terms as follows:1. That this court be pleased to grant stay of execution of judgment delivered on 30th May, 2022 by Hon. EDward M. Muriithi – Judge in High Court Meru Succession Cause No. 480 Of 2011 And all the consequential orders there from pending the hearing and determination of this application.

2. That this court be pleased to grant stay of execution of judgment delivered on 30st May, 2022 and all the consequential orders therefrom pending the hearing and determination of the intended appeal to the Court of Appeal.

3. That this court be pleased to grant such other orders be made as are just and expedient in the interest of justice.

4. Costs of this application be provided for.”

[3]The application is opposed by the respondent Administrator whose Counsel, Mr. Maheli, has dismissed the applicant’s motion as serving no purpose and a hindrance to the implementation of the Judgment of the Court and the enjoyment by the beneficiaries of their shares of the estate as distributed by the Judgment.

[4]In arriving at the order for lifting of the inhibition this court in its ruling of 30th May 2022 found that there was no pending proceedings for determination by this court as would justify the continued existence of stay, as follows:“”

[5]This court does not believe that the applicant has an arguable case to present to the Court of Appeal on the point. However, accepting that it could be wrong, the court defers to the reasoning of Cotton L.J. in Wilson v Church (No. 2) [1879] 1 Ch. D 454,458, which has been adopted in this country by numerous cases such as Madhupaper International Limited v Paddy Kerr [1985] KLR 846, that “when a party is appealing, exercising his undoubted right of appeal, the court ought to see that the appeal if successful is not nugatory.”

[6]If leave to appeal is necessary there is no provision in section 50 of the Law of Succession Act on appeals for appeal to the Court of Appeal, this Court readily grants the same pursuant to the right to fair hearing under Article 50 (1) of the Constitution, as the order of this court sought to be appealed from is in the nature of a final order lifting the inhibition on the suit property.

[7]The intended appeal would be rendered nugatory if, upon the lifting of the inhibition, execution of the judgment of this court leads to disposal of the disputed estate property in such a manner as to put it beyond reach of the applicant.

[8]The court also considers that the applicant who is self-represented requires the reconsideration of the matter by a higher court in accordance with the law.

[9]In balancing the interests of the applicant against those of the Respondent beneficiaries who seek to get their share of estate assets, the Court will make the order for stay for a period of thirty days only which is sufficient for the applicant to approach the Court of Appeal, which is the court which will eventually hear the intended appeal to consider whether to grant the stay of execution pending hearing and determination of the appeal from the decision of this court of 30th May 2022.

[10]The Court of Appeal has jurisdiction as the court to which the appeal is preferred in terms of Order42 Rule 6 (1) of the Civil Procedure Rulesas follows:“6(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”

Orders 11. Accordingly, for the reasons set out above, the Court grants the application for stay of execution/stay of proceedings as prayed by the Objector/Applicant for a period of thirty (30) days only to allow the applicant to approach the Court of Appeal for an order of stay of execution.

12. In default of an application to the Court of Appeal or of an order by that court granting a stay of execution on expiry of the thirty (30) day period, the order for stay of execution made herein shall lapse and be of no effect.

13. As this is a family succession matter, there shall be order as to costs.Order accordingly.

DATED AND DELIVERED THIS 6TH DAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Ms. Eunice Mwaronja, Applicant in Person.Mr. Maheli, Advocate instructed by M/S Wambugu & Muriuki Advocates for the Administrator/Respondent.