[2021] KEHC 3938 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO. 156 OF 2004

IN THE MATTER OF THE ESTATE OF BN

SMM……………………………APPLICANT/RESPONDENT

VERSUS

CNN

WMN……………........….......PETITIONERS/APPLICANTS

RULING

1. The deceased herein BMN died intestate on 8th November, 2003. On 26th November 2004, a grant of letters of administration was made and issued on 2nd December 2004 to CNN who claimed to be the deceased’s wife (widow) and WMN in his capacity as a son to the deceased. Besides, they named three other survivors one RK (daughter), CMN (daughter) and Grand-daughter LN.

2. Vide a summons dated 18th January, 2005 SMM sought revocation of the grant on grounds that the same was obtained fraudulently and through concealment of material information in that she was the only recognized wife (widow) to the deceased hence ought to have been considered. She further claimed that the 1st petitioner one CNN had divorced with the deceased and their marriage dissolved through a divorce decree dated 27th October 1995.

3. After canvassing the revocation application viva voce, the honorable court through its ruling dated 12th July, 2019 found that the 1st petitioner one C having divorced had no capacity under Section 66 of the Law of Succession to petition for a grant of representation in respect of the estate of the deceased and that in any event, she ought to have sought consent from S the applicant in the revocation application. The court went further to revoke the grant and made orders a follows;

(1) Grant of letters of administration issued to CNN and WMN on 2nd December, 2004 is hereby revoked.

(2) All transactions made pursuant to the revoked grant are hereby nullified

(3) There shall be no order as to costs.

4. Aggrieved by the above findings, CNN and WM (hereinafter the applicants) moved the court through a Notice of Motion dated 15th October, 2019 and filed on the same date seeking orders that;

(1) Spent;

(2) That there be a temporary stay of execution of the orders issued on 12th July, 2019 pending the hearing and determination of this application interpartes.

(3) That there be temporary stay of execution of the orders issued on 12th July, 2019 pending the hearing and determination of the intended appeal in the court of Appeal.

(4) Costs of the application be provided for.

5. The application is based on the grounds urged on the face of it and further amplified by the content in an affidavit sworn by the appellant on 15th October, 2021. She averred that, the impugned ruling had effectively disinherited the appellants their estate being widow and son to the deceased respectively.

6. She claimed that the impugned ruling was delivered in their absence hence the reason for the delay in filing the appeal in time. She attached an affidavit (CCN -13) sworn by Mathew Oduor their advocate confirming that he came to know of the delivery of the ruling on 2nd September 2019.

7. That following the above stated orders, S (hereinafter the respondent) has threatened to evict them from parcel No MN/I/xxxx and that unless a stay is issued, they will suffer substantial loss should the said eviction threat be executed.

8. That the intended appeal as can be discerned from the memorandum of appeal (CCN-8) has high chances of success. She urged that the finding by the court that she had divorced was not true as the divorce proceedings are still pending determination. She further averred that the appeal will be rendered futile if the appeal succeeds.

9. In response, the respondent filed a replying affidavit sworn on 12th February, 2020 stating that the appellant has no interest in plot No MN/II/xxxx having transferred the same to one Mr. Mutua Chamia who is currently occupying the house. She further stated that the appeal has minimal chances of success. She contended that since there is no grant in place, the same should issue to the rightful beneficiary to enable them apply for confirmation of the grant.

10. When the matter came up for hearing, parties agreed to have the application disposed by way of written submissions.

Applicant’s submissions.

11. Through the firm of Mutunga and Co. Advocates, the applicant filed their submissions on 10th February, 2021. Principally, the applicant reiterated submissions contained in the affidavit in support.

12. Counsel submitted that; the purpose for stay of execution orders is to preserve the subject of appeal; the appellants have a Constitutional right of appeal which should not be curtailed; they have filed an application for extension of time to file the notice of appeal out of time; the appeal has high chances of success

13. That by finding that the deceased had divorced with the deceased in Mombasa Div. Cause No 45/1994 which is not correct is likely to occasion a miscarriage of justice. That the appeal will be rendered nugatory if stay is not granted hence a possibility of suffering substantial loss. That the respondents will not suffer any prejudice should the application be allowed. In support of this position, counsel referred to the holding in the case of HCC NO 25/212 RWW VS EKW (2019) eKLR.

Respondent’s submissions

14. The firm of Marende and Co. Advocates appearing for the respondents filed their submissions on 19th March, 2021 reiterating the content contained in the replying affidavit. Counsel submitted that the appellant’s notice of appeal having been filed out of time there is no valid appeal in place made hence the prayer for stay cannot apply. In support of this submission counsel referred to the holding in the case of Kinyunjuri Maguta Vs Wotuku Maguta 2018 e KLR

Analysis and determination.

15. I have considered the application herein, response thereto and rival submissions by both counsel. Issues that emerge for determination are; whether the applicants have met the threshold for grant of stay of execution order; whether the notice of appeal issued outside time was valid.

16. The application herein has been filed under Order 22 rule 22 (1) of the Civil Procedure Rules and Section 3 A of the Civil Procedure Act. Section 22 (1) refers to decrees sent from the issuing court to another court for execution which orders can be stayed by a court of first instance. I do not find this provision applicable in the circumstances of this case as it does not deal with stay of execution pending appeal.

17. Although Order 42 rule 6 (2) of the civil procedure rules is not provided for under rule 63 of the Probate and Administration Rules of the Law of Succession Act, the high court is under Section 47 of the Law of Succession and Rule 73 of the Probate and Administration rules seized of such wide powers to determine any issues while applying relevant provisions in order the ends of justice to be met. To that extent the high court is not precluded from applying the principles set out under Order 42 rule 6 (2) of the civil procedure rules to determine the issues in contention.

18. See in Re Estate of Dominic Odhiambo (deceased) (2021) e KLR the court stated at paragraph 22 that;

“for stay of execution pending appeal, the Procedure is provided under Order 42 of the Civil Procedure Rules. Though this is not one of the orders referred to under Rule 63 (c) of the Probate and Administration Rules, the practice in this court has leaned on the reliance of the Order 42 when dealing with stay of execution in succession matters. This is on the basis of Rule 73 Probate and Administration rules which provides;

“Nothing in this 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”

19. Having held that this court can properly be guided by Order 42 Rule 6 (2) of the Civil Procedure Rules, I will now endeavor to address key elements under Order 42 rule 6 (2) which ought to be proved. Order 42 rule 6(2) does provide as follows;

“No order for stay of execution shall be made under sub- rule (1) unless;

(a) the court is satisfied that substantial loss may result to the appellant unless the order is made and that the application has been made without unreasonable delay and;

(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the appellant.

20. I am however alive of the fact that to grant or not an order of stay of execution pending appeal is a matter of discretion by the adjudicating court. See Butt Vs Rent Restriction Tribunal (1982) e KLR 417 where the court held that the power to grant or refuse an application for stay of execution is discretionary power which should be exercised in such a way as not to prevent an appeal.

21. Before I consider the key elements under Order 42 Rule 6 (2) of the Civil Procedure Rules, I would like to consider the claim by the respondent that there is no valid intended appeal as the notice of appeal was filed out of time and without leave to appeal out of time. As stated elsewhere herein above, the impugned ruling was delivered on 12th July, 2019 and the notice of appeal filed on 6th September, 2019. This was after receiving a copy of the ruling on 23rd August, 2019.

22. Despite filing an application dated 8th December, 2020 seeking leave to extend time to file notice of appeal out of time against the same ruling, the same has not been prosecuted. Without a valid notice of appeal in place, and in the absence of leave from the court to extend such time, the intended appeal cannot stand and the draft amended memorandum of appeal is valueless.

23. The applicant in my view ought to have sought orders for extension of time to file notice of appeal out of time together with the application for stay. Having not obtained leave to extend time to file notice of appeal and therefore leave to appeal out of time, the court is left with no choice but to conclude that there is no appeal in place nor valid intended appeal.

24. Considering the aspect whether the application was filed within reasonable time, the same will depend on the merits of each case. In this case, the impugned ruling was delivered on 12th July, 2019 and a copy collected by the firm of Oduor then representing the applicant on 23rd August,2019. This is contrary to Oduor’s affidavit annexed to the application herein stating that he came to learn of the ruling on 2nd September, 2019. From 23rd August 2019 up to 15th October, 2019 when the application was filed is almost two months. Mr Oduor could not explain why he did not file the application immediately he received the ruling on 23rd August 2019 and had to wait until October. Although the period may appear short, the reason for the delay beyond the statutory period is not justified hence unreasonable delay.

25. The word unreasonable delay is indeed relative. In the case of Jaber Mohsen Ali and Another vs Priscilla Boit and Another ( 2014) e KLR the court was of this view;

“The question that arises is whether the application has been filed after unreasonable delay. What is unreasonable delay being dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor Vs Christopher Kipkorir, Eldoret ELC 919/2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after 14 days. The application was denied. The court holding that the applicant ought to have come before expiry of the period given to vacate the land”.

26. In the instant case, from 12th July, 2019 when the ruling was delivered up to 15th October, 2019 when this application was filed is unreasonable given that no attempt was made to explain the cause for delay from 23rd August, 2019 when Oduor received the ruling. Timelines and rules of procedure are not given in vain. They serve a purpose in expeditious dispensation of justice in accordance with the oxygen principles. In this case the appellant has failed to justify the delay.

27. As regards proof of likelihood of suffering substantial loss, it is incumbent upon the appellants to prove the prejudice they are likely to suffer should the court decline to grant the orders. The 1st appellant claimed that she is likely to be disinherited if the application is not allowed. The orders being challenged have been in place since 16th July, 2019 and no attempt to execute has been made.

28. The impugned order merely revoked the grant on grounds that the 1st appellant had divorced the deceased which according to the hon. Judge was proved by a court decree entered in the court register. Mere revocation of the grant does not mean distribution of the estate. The estate is yet to be distributed in which the appellants shall have a chance to prove dependency.

29. By being stripped of the power to administer the estate does not amount to disinheritance. To me, I do not find any prejudice to be suffered by the appellant if somebody else administers the estate.

30. If during confirmation of the grant the 1st appellant who was a first wife proves dependency under Section 29 of the Law of Succession Act, then she will be entitled to a share. In any event, appointment of administrators is at the discretion of the court hence removing the applicants from that role was purely at the discretion of the court.

31. I am fully aware that the objective of stay of execution orders is to preserve the subject of the intended apple. See RWW VS EKW ( supra) where the court emphasized on the purpose for stay of execution orders as preserving the subject matter in dispute so that the rights of the appellant are safeguarded and the appeal if successful is not rendered nugatory.

32. I n this case, I have already stated that there is no appeal pending hence the issue of an appeal being rendered nugatory does not arise. Therefore, I do not find any justifiable reason to warrant stay of execution of what is not there in the first place as none of the beneficiaries has moved the court for appointment of a new administrator.

33. Concerning depositing security, this is a family matter hence I do not find the same appropriate. In any event, none of the parties raised it. In a nut shell, it is my holding that the appeal herein is not merited and the same is dismissed. Regarding costs, this is a family matter hence costs shall be in the cause.

34. Having held as above, I wish to state that this is an old matter. The court having revoked the grant after finding that it was obtained fraudulently and through concealment of material information, the estate ought to have an administrator in place to continue administering the estate. The 1st appellant having been dismissed from administering the estate, the respondent in conjunction with other beneficiaries should move the court appropriately for issuance of a fresh grant of letters of administration.

Dated signed and delivered virtually at Mombasa this 31st day of August 2021

…………………..

J. N. ONYIEGO

JUDGE