[2022] KEHC 2215 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

PROBATE AND ADMINISTRATION CAUSE NO.9 OF 2014

PETER KIIRU CHOMBA..............................................1ST APPLICANT

JOSEPH NJUGUNA KIIRU..........................................2ND APPLICANT

MARGARET NYAMBURA

MURAGE KIIRU NGUGI.............................................3RD APPLICANT

VERSUS

1. JULIUS MUNGIRI KIIRU....................................1ST RESPONDENT

2. LEONARD GICHORA KIIRU............................2ND RESPONDENT

Coram:Hon. Justice S.M.Githinji

Mr Ngigi Mbugua for the Petitioner

Mr Lagat for the Objectors

R U L I N G

What is pending before the court is the Notice of motion dated 2/7/2021 and filed on 5/7/2021.

The applicants seek the following prayers;

a) Spent.

b) That there be stay of execution of proceedings in this matter pending the hearing and determination of the Appeal herein being Eldoret CACA No. 34 of 2020 - Joseph Njuguna Kiiru & 3 Others -vs- Julius Kiiru & Anor.

c) Leave be granted to Alice Wambui Muchiri alias Alice Wambui Kiiru and Lucy Ng’endo Njoroge to be substituted in lieu of the 1st Objector.

d) Costs be borne by the Respondent.

The application is, in a nutshell, based on the grounds that The Applicant has filed an Appeal to the Court of Appeal against the Ruling and Order of this Honorable Court delivered on 30/4/2020 by myself and the same will be rendered nugatory if the proceedings are not stayed. It is of paramount importance that the 1st Objector (Deceased) be substituted by Alice Wambui Muchiri Aka Alice Wambui Kiiru and Lucy Ng’endo Njoroge, the deceased’s proposed personal representatives.

APPLICANT’S CASE

The applicants cite Order 42 Rule 6 and submits that there are sufficient reasons for this Honorable court to stay proceedings of the main suit herein. The reasons being that the Applicant has strong grounds of appeal against the Ruling of 30/4/2020 and the appeal will be rendered nugatory should stay orders not be granted.

The applicants cite the case of Global Tours & Travel Limited (Nairobi) HC winding up Cause No. 43 of 2000 and submit that they have demonstrated that they have a merited appeal for the issues raised in the appeal are weighty, hence the Applicants should be given opportunity to pursue the appeal given the crucial nature of the evidence that was to come from the Directorate of Criminal Investigations. It is in the best interest of justice that this Honorable court be pleased to grant the Applicants stay orders.

The application was filed expeditiously and the respondents will not suffer any prejudice.

The Applicant has established a prima facie case for appeal based on the grounds that; -

a) The trial court erred in calling report purportedly by EACC to be by the DCI.

b) The trial court erred in misinterpreting who was to examine the purported wills.

c) The trial court was clearly biased in favour of the Petitioner.

d) That even on record, the court is biased because the matter was referred for mediation but strangely the court returned it for hearing without formal application and without a report from the court appointed mediator.

The applicants herein have proved within the balance of probabilities the three elements for grant of stay of proceedings as was espoused in the case of Global Tours & Travels Ltd; Nairobi HC winding up Cause No. 43 of 2000.

The applicants cite Order 24 Rule 4 (4) of the Civil Procedure Rules, 2010 and Section 2 of the Civil Procedure Act and submit that the estate of the late 1st Objector has just been issued with letters of administration after a 5 months wait and the Applicants are unable to proceed with the substitution as it is not known when the court in its wisdom will issue a grant thereto.

Alice Wambui Muchiri alias Alice Wambui Kiiru and Lucy Ng’endo Njoroge are the Petitioners for grant of representation over the estate of the 1st Objector thus it is prudent that they are substituted with the 1st Objector in this matter. They have followed due process for grant of legal representation and no party will be prejudiced if they are substituted in lieu of the 1st objector.

They pray that the court grants the orders sought.

RESPONDENT’S CASE

Respondents submits that the Applicants’ appeal to the Court of appeal is devoid of merit and is a nonstarter for the following reasons;

The appeal violates the provisions of Section 50(1) of the Law of Succession Act which provides as follows;

“An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final”

The Ruling and order of this Honorable Court delivered on 30/4/2020 in this Succession Cause is final as it is a decision of the High Court. No leave has been sought by the Applicants to appeal against the Ruling and their appeal to the Court of Appeal is dead on arrival. They rely on the case of Rhoda Wairimu Karanja & another vs Mary Wangui Karanja & another [2014] Eklr. and the case of Inre Estate of Sarastino M'chabari M'ukabi (Deceased) [20191 Eklr.

Since leave was not sought by the Applicants to appeal against the aforementioned ruling of this court to the Court of Appeal, it follows that the appeal already filed is invalid and incompetent. It is trite that a court of Appeal does not interfere with the exercise of judicial discretion unless it would lead to an injustice which in this case has not been demonstrated.

The wishes of the deceased expressed in his will cannot be negated unless the will is invalidated which has not been done in this case. The beneficiaries who are named in the will are bogged down by the pendency of this cause from enjoying their bequeaths from their patriarch. The deceased died at the age of ninety-nine years, and the beneficiaries in this succession cause are elderly and will be highly prejudiced if this matter is delayed further by granting the orders of stay of proceedings sought for by the Applicants.

The respondents cite the case of Kenya Wildlife Service v James Mutembei [2019] Eklr and submit that the objectors have never been keen to prosecute their objection to the petition as they have sought and obtained adjournments using all manner of excuses which has led to this cause remaining in the system for over 9 years, which is unfair and oppressive to the Petitioners.

The Applicants are therefore seeking stay of these proceedings to delay this succession cause further as it is clear that they neither have a valid, nor arguable appeal at the Court of Appeal.

The Ruling the Applicants seek to appeal against was delivered on 30th April 2020. The matter has come up for mention severally before this honorable court after the aforementioned ruling was delivered and yet the Applicants did not deem it fit then to seek stay of proceedings. On 21st June, 2021 this cause came up for hearing and it would have proceeded save for the reason that counsel for the objectors was indisposed. The instant application is therefore an afterthought. There is an inordinate delay which has not been explained in filing the instant application. At the time this application was filed 1 year and 3 months had lapsed since the delivery of the ruling the Applicants are seeking to appeal against.

It is the Respondents' case that the deceased 1st objector was a beneficiary of this estate by virtue of being a son of the deceased herein; his widows cannot be described as heirs or dependants of the estate herein and their joinder to participate in these proceedings is unnecessary and uncalled for.

The respondents cite section 66(a) and (b) of the Law of Succession Act and submit that under Part V referred to under Section 66(b) of the Law of Succession Act, the persons given priority over an intestate are the surviving spouse and children. Where the intestate has unfortunately left no surviving spouse and children the provisions of Section 39 of the Law of Succession Act shall apply.

The widows of the deceased first objector can therefore only file an affidavit of protest at a later stage in this cause if they are not adequately provided for.

When this cause came up for directions, this court upon consent of parties directed parties to use the affidavits on record as their statements and it is unfathomable how the widows of the deceased objector can make fresh statements over issues they are unfamiliar with.

The Application for leave to have the deceased objector substituted as can be gleaned from the Applicants’ written submissions is premised on Order 24 of the civil procedure Rules. Order 24 of the Civil Procedure Rules deals with the substitution of a deceased plaintiff or defendant in a civil suit and is not applicable in a succession cause. Rule 63 of the Probate and Administration Rules gives provisions regarding the applicability of the Civil Procedure Rules in succession matters.

Section 54 of the Act provides that a Court may limit a grant of representation which it has jurisdiction to make in any of the forms described in the Fifth Schedule. The respondents also cite the case of In re Estate of Mohammed Bilali (Deceased) [2020] eKLR.

No grant of representation whether full or limited in respect of the estate of the deceased objector has been placed before this Honorable court. In the absence of such limited or full grant they urge this Honorable court to dismiss the instant application as there is no basis for the applicants to substitute the deceased objectors for purposes of pursuing this cause.

ISSUES FOR DETERMINATION

1. Whether the orders for stay of proceedings should issue

2. Whether the applicants should be allowed to substitute the 1st objector

Whether the orders for stay of proceedings should issue; -

Order 42 Rule 6 of the Civil Procedure rules provides;

“(1) No Appeal or second appeal shall operate as stay of proceedings under a decree or order appealed from except appeal case of 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 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 ”

In Christopher Ndolo Mutuku & Another vs. CFC Stanbic Bank Ltd (2015) eKLR, the Court observed that;

“…what matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice…”

In order to determine whether to grant stay, the Court must determine whether there exists a merited appeal. The applicants seek to appeal the decision ordering the report prepared by the EACC be admitted in court.

I note that the applicant did not seek leave to file the appeal. As per section 75 of the Civil Procedure Act, the appeal against the order does not lie as of right. In the case of Mary Wangui Karanja & Another -vs- Rhoda Wairimu Karanja & Another [2014] eKLR, Hon. Justice Musyoka held as follows: -

“I am persuaded, and it is my reading of Section50 of Law of Succession Act that no right of appeal arises from original decisions of the High Court as a probate court to the Court of Appeal. A right of appeal is statutory and since the Law of Succession Act has not provided for such a right the same does not exist. I find not at all ground upon which I can grant leave in the manner sought by the respondent.”

In the case of Rhoda Wairimu Karanja & Another -Vs- Mary Wangui Karanja & Another [2014 Eklr the Court of Appeal made the following observations: -

“We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of the High Court or where the application for leave is refused, with leave of this court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merits serious consideration. We think this is good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes.”

Given that the applicants did not seek leave, there is no competent appeal in place.

Whether the application was brought without undue delay; -

The decision that the appellants seek to appeal is a decision that was delivered on 30th April 2020. I note that the matter has been before the court severally since then and the applicants made the application on 5th July 2021, over a year later. It paints a picture of a delay tactic as the delay has not been explained. In the premises the delay is unreasonable.

Whether the Applicants should substitute the 1st Objector

Order 24 of the Civil procedure rules only applies to civil suits and is not applicable in succession matters.Rule 63 of the Probate and Administration Rulesprovides as follows regarding the applicability of the Civil Procedure Rules in succession matters:

“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules”

Section 66(a) and (b) of the Law of Succession Act provides as follows

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors.

Section 39 of the Law of Succession Act provides;

“(1) Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-

(a) father, or if dead

(b) mother; or if dead

(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none

(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none

(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.”

The 1st objector was beneficiary of the estate by virtue of being a son of the deceased. The applicants are his widows and as per the provisions of section 39 of the Law of Succession Act they cannot be included in the cause.

In the premises the application lacks merit and fails in its entirety.

Ruling for Eldoret Read, Signed and Delivered Virtually at Malindi this 7th day of February, 2022.

...................................

S.M. GITHINJI

JUDGE

In the Presence of:

1. Mrs Mitei holding brief for Mr Ngigi Mbugua for the Petitioner

2. Mr Lagat for the Objectors