1) Before me is the notice of motion dated 24/4/2024 - brought under Articles 25(c), 50, 165(6) (7), order 42 rule 6, order 51 rule 1 of the Civil Procedure Rule, sections 1A, 1B, 3A of the Civil Procedure Act.
2) The applicant seeks order that the proceedings in this cause be stayed pending the hearing and determination of ELC NO. E027/2023.
3) The main ground for the application is that the dispute over plot No. Nzaui/Mbumbuni/424 is not grounded on succession but on ownership; which is the sole ambit of the ELC Court.
4) That the dispute arose in 1976 and neither party is in occupation of the property ; and that there are sale agreements which the ELC Court needs to consider and determine.
5) There is a supporting affidavit sworn by Barnabas Masunga Kyuvi.
6) He depones that the 1st respondent - Geoffrey Mutisya claims to have purchased the property and the 2nd respondent claims to have been gifted the property by the 1st respondent. He annexed the respective alleged agreements.
7) It is his position that since the Memorandum of Appeal raises an issue of the Contract Act section 3(3) only a court of competent jurisdiction can deal with the issue.
8) The replying affidavit is sworn by Geoffrey Mutisya with the consent of the co-respondent - he depones that the dispute over the property Nzaui /Mbumbuni is purely succession - where the 1st respondent claims from the estate of the deceased John Kyuvi Mutiso - that he purchased the land during the life time of the deceased following a sale agreement dated 25/8/1979 between him and the deceased.
9) He depones that he is under legal advise that a purchaser’s right is recognised by the Law of Succession Act under Rule 40(6) - where the purchaser is permitted to protest confirmation of the grant.
10) Further, that the issue of ownership of the land was never in dispute in Makueni Succession Cause E017/2020 and that what was in contention was the recognition of the protester’s interest in the estate which was disputed by the appellants/applicants : the affidavit of protest is annexed.
11) That the cause of action/dispute in Makueni CMCC ELC E027/2023 is about trespass and not ownership of the property Nzau/Mbumbuni/402 ( the plaint is annexed)
12) The appellants/ applicants filed a supplementary affidavit - where they reiterate that there has been a long time land dispute which they intend to resolve in CMCC ELC E027 /2023.
13) That the title deed is in the name of the deceased, that purchaser’s rights can only be determined in an ELC; that the respondents are not beneficiaries of the estate of the deceased, that the ELC matter will not touch on this cause.
14) Parties filed written submissions, through their respective counsel.
15) The appellants submitted that the application is premised under section 47 of Law of Succession Act, Rule 73 of the P&A Rules, order 51 of Civil Procedure Rule.
16) That in the ELC matter they are seeking an order that the deceased is the sole proprietor of Nzaui/Mumbuni/424.
17) They rely on section 6 of the Civil Procedure Rule as a bar to all parallel suits; It states:
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or Any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
Explanation – the pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.
18) They cite Halsbury’s Law of England 4th Edd. Vol . 37 pages 330 and 332 on stay of proceedings:
“ The stay of proceedings is a serious , grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional case…”
19) They cite Global Tours & Travel Limited NBI HC Winding up cause 43/2000 on the exercise of discretion in determining whether or not to grant an order of stay of proceedings - that the key is whether it is in the interest of justice - and the factors: need for expeditious disposal of matter among others.
20) The court has been urged to be aware of the difference between stay pending appeal, and stay of proceedings and is referred to order 42 Rule 6, and Kenya Power & Lighting Limited Vs Esther Wanjiru Wokabi [2014] eKLR.
21) It is argued that the applicant has an arguable case, the application was filed expeditiously and has established sufficient grand for the orders sought.
22) The court’s attention is brought to the jurisdiction of the ELC Court as provided for under Article 162 (2) (b) of the Laws of Kenya(2010), section 13 of the ELC Court Act, laying emphasis on section 13(2) (e) where it speaks about any other dispute relating to environment and land. Reliance is had on in re Estate of late M’ Kuura Mukindia (Deceased) [2021] eKLR, & Joseph Kabria Kimari V Tony Mwenda Muthaura [2021] eKLR where it was stated:
“At this juncture, I find it necessary to distinguish the facts at hand with those raised in Isaac Kinyua & 3 others V Hellen Kaigongi [2018] eKLR cited by the respondent. In the cited case, tis court was being urged to grant a stay of proceedings in a succession case which was before a magistrate’s court. Having regard to the provisions of Article 162 of the constitution as well as the ELC Act, this court stated that it could not stray in the ambit of probate matters. In the same breadth, a Probate Court ought not to determine claims which are in the domain of the Environment and Land Court.”
23) The applicants argue that if stay is not granted the land matter will be rendered nugatory. It is noteworthy that the authorities cited in support of this argument relate to stay pending appeal.
24) It is further submitted that in Re Estate of the late Manguu Kyululi (deceased) [2022] eKLR , the court stated
I note that in their written submissions, both counsel for the parties agreed that the reliable court decisions on such matter are generally that, stay of succession proceedings be granted pending determination of the Environment and Land Court in land ownership dispute cases that relates to alleged assets of the deceased.”
25) That the judge was of the view that as a general rule, proceedings before the succession court should await a pending case on the ownership property subject to the estate, pending confirmation or revocation of grant.
26) For the respondents it is submitted that there are 2 issues for determination, whether this court has jurisdiction and whether the applicants are entitled to orders sought.
27) On jurisdiction - the court is referred to Owners Of Motor Vehicle Vessel “Lilian S” vs Caltex Oil (Kenya) Ltd 1989 KLR and the Supreme Court in Samuel Kamau Macharia Vs Kenya Commercial Bank & 2 others Civil Application No. 2/2011.
28) The impact of these 2 authorities is that the court’s jurisdiction is everything, without it the court will be acting in vain,
“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction conferred upon it by law. We agree with counsel for the first and second respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings… where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within constitutional limits. It cannot expand jurisdiction through judicial craft or innovation.” see Samuel Kamau Macharia above
29) It is submitted that the jurisdiction of this court over the subject matter is conferred by section 66 (d) of the Laws of Succession Act ;
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or person 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 general guide the following order of preference:-
a) …
b) …
c) …
d) creditors.”
30) Further that Rule 40(b) of the P & A rules does the same,
“Any person wishing to object to the proposed confirmation of grant shall file in the cause in duplicate at the principal registry an affidavit of protest in form 10 against such confirmation stating his ground s of objection.”
This is supported by the citing of Re Estate of Julius Ndubi Javan HC P & A 720/2013 [2018] eKLR where the judge stated
“ but before I close, the facts of facts of this case bring me to the point where I feel I should state, albeit in passing, that, where the deceased had entered into some binding transactions, or where liability had attached against him or a right had accrued upon him, the death of the deceased does not discharge him from the obligations or liability, or obliterate his right under those transactions. The personal representative comes in to fulfill those obligations or liabilities, or to realize any right or benefit thereof for the estate of the deceased. That is why the law requires the personal representative to bring in all the estate property, to pay out all liabilities and discharge all obligations of the deceased. In my experience as a judge, I have seen dishonest parties seeking to defraud bona fid claimants especially in land transactions which the deceased did not complete due to his death, in the pretext of preserving the estate and what they mostly cite in section 45 of the Law of Succession Act even where it is inapplicable. Circumstances of this case should be distinguished from situation where the sale of land is done after the death of the deceased and before confirmation of grant.”
31) It is argued that the issue of ownership of the deceased’s estate was never in issue in the trial court. That the estate was free property of the deceased, and this court has the jurisdiction to distribute the same to the rightful beneficiaries see In re Estate of Alice Mumbua Mutua (deceased) [2017]eKLR where it was said ;
…The Law of Succession Act, and the Rules made thereunder,are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the person with beneficial interest, and finally distribution of the assets amongst the survivors and the person beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.”
32) Further that what is before this court is the distribution of the free property of deceased as defined by section 3(1) of the Act Law of Succession Act .
33) From the foregoing the key issue is whether this court has jurisdiction to deal with the estate of the deceased, if so then what orders are to issue.
34) I have perused the record and considered this application, affidavit evidence, submissions.
35) Looking at the amended plaint in CM ELC E027/2023. The prayers sought the prayers sought the plaint are that;
i. An order that land parcel Nzaui/Mumbuni/424 belongs to the estate of John Kyuvi Mutiso.
ii. An order of permanent injunction restraining the defendant either by himself or his servants, agents, employees, family members (Rose Mbithe Mutinda) and /or whoever is claiming form him from selling , transferring , alienating, subdividing, entering, trespassing or carrying out any wanton works or interfering with the Plaintiffs’ quiet possession use and enjoyment of Plot No. Nzaui/Mumbuni/424.
iii. General damage trespass. Costs and interest of this suit
iv. Any other relief that this Honourable court may deem fit and just to grant.
36) On the first prayer, it is not in dispute in this cause that the property in question is indeed the estate of the deceased. That is not in issue that requires to be declared. That fact that it is in his name, without encumbrances makes it his property. That puts that property squarely into the ambits of the jurisdiction of this court.
37) The issue of the interests of third party are clearly addressed in the Form P&A 5. There any liability against the estate is to be indicated so that the P&A court can ensure, if established, the liabilities of the estate of the deceased are settled. In this case, the third parties are claiming against the estate. It is a claim against the estate not a property dispute. That cannot be a reason for this court to decline jurisdiction.
38) Regarding the alleged intermeddling activities of the person mentioned in the second prayer in the ELC cause, evidently the administrators appear not to recall their duties and powers under the LOSA, to protect and preserve the estate of the deceased. Those exercise of those powers and duties do not necessarily fall under the jurisdiction of the ELC Court. Where the need arises for suits to be filed, this court is aware that in certain causes of action it will not have jurisdiction, but not in this one.
39) There is no issue of a parallel suit as envisioned by s. 6 of the CPA and submitted by the applicants. It is clearly evident that the suit in the subordinate court was filed after this cause. There is no matter in issue in that is also directly and substantially in issue in this suit. The culmination of this matter is the distribution of the estate of the deceased. If anything it is the suit in the subordinate court that is raising issues that ought to be determined in the Succession Cause and not in any other court as they relate to the estate of the deceased person.
40) If there has been trespass and loss and damage suffered by the estate in the hands of intermeddlers, the administrators have every right to pursue them in the best interest of the estate. If it means filing a suit(suits) that is within their ambit but that would not require stay of the succession proceedings in the manner requested.
41) My understanding is this that the respondents are claiming from the estate of the deceased. They are claiming to have purchased from the deceased the estate /part of the estate - they have come to this court claiming that the deceased sold them the estate - they have the right and the audience before this court to establish their claim as any other liability against the estate - their alleged liability against the estate.
42) This court’s power is over the estate of the deceased person – whether land, etc to ascertain what the estate is, to ascertain the beneficiaries and to distribute it accordingly. In the event that the respondents establish that they are creditors of the estate - then they would be entitled to have the same settled within this cause.
43) In the circumstances I find that the application is not merited and dismiss it accordingly with no orders as to costs.
Dated, signed and delivered virtually this 4th April 2024
Mumbua T Matheka
Judge
Mr. Wasolo for appellants
Ms. Kyalo for Respondents
Chrispol Court Assistant