I have read the applicant’s application dated 1 September seeking review of my earlier order in this application wherein I did not order for leave to operate as stay. I gave my reasons for not granting that order and going by the applicant’s pleadings, the reasons were not far-fetched. The applicant admits that, in the wake of may order, he had to file an amended summons in which he now included the prayer for the order for leave to operate as stay.
I gather from the application that the application wants to stop investigations into an offence that may have been committed under section 45 of the Law of Succession Act, cap. 160. This section reads as follows:
45. (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall –
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
Now, if the respondent has reasonable suspicion that an offence has been committed under this provision of the law, he is under a statutory duty to investigate the offence and bring the culprit to book. Whether such reasonable exists or not is not a question that I can determine at this stage of the proceedings. Indeed, I may only go into that question to the extent that it is relevant to the determination of the question of the legality of the process and not whether the applicant should or should not be investigated. A judicial review court would ordinarily be concerned about the process and not the merits of a decision.
As the applicant has rightly pointed out, grant of the order for leave to operate as stay is discretionary and not as of right. For reasons I have given, I am not persuaded to exercise my discretion in favour of the applicant and grant a stay order. My previous directions in this matter subsist and the matter shall proceed on 27 September 2023 as earlier directed. It is so ordered.
I gather from the application that the application wants to stop investigations into an offence that may have been committed under section 45 of the Law of Succession Act, cap. 160. This section reads as follows:
45. (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall –
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
Now, if the respondent has reasonable suspicion that an offence has been committed under this provision of the law, he is under a statutory duty to investigate the offence and bring the culprit to book. Whether such reasonable exists or not is not a question that I can determine at this stage of the proceedings. Indeed, I may only go into that question to the extent that it is relevant to the determination of the question of the legality of the process and not whether the applicant should or should not be investigated. A judicial review court would ordinarily be concerned about the process and not the merits of a decision.
As the applicant has rightly pointed out, grant of the order for leave to operate as stay is discretionary and not as of right. For reasons I have given, I am not persuaded to exercise my discretion in favour of the applicant and grant a stay order. My previous directions in this matter subsist and the matter shall proceed on 27 September 2023 as earlier directed. It is so ordered.