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1. Before me is the Chamber Summons dated 2/11/2023 under order 42 Rule , rule 59 P&A rules, sections 45 , 47 50 (I), 55 of the LOSA, sections 1A and 1 B, 3A of the Civil Procedure Act. The applicants seek the following:
1) Spent.
2) That this Honourable Court be pleased to issue a stay of confirmation of the Grant as directed by Honourable B. N. Ireri on the 16th October 2023 pending the hearing and determination of the appeal by the Appellants/ Applicants herein.
3) Spent.
4) Spent.
5) That pending the hearing and determination of the Appeal herein, there be preservatory and protection orders against the Respondents herein together with their servants, agents and/ or any other persons whomsoever against interference and intermeddling with the assets of the deceased’s estate in any way.
6) That this Honourable Court makes any other appropriate orders to preserve the estate of the deceased, subject matter of the Appeal herein.
7) That the costs of this Application be provided.
2. The grounds for the Summons are set out on the face of the application and the affidavit in support sworn by Florence Nditi Ndetei on even date.
3. The key ground is that one of the parties that was in the certificate of confirmation of grant - plot No. 223 KA/‘B’ settlement scheme took the family home and stands the risk of disposal by the respondent. The consequence of which would be irreparable harm visited upon the applicants, who are siblings.
4. The application is opposed vide the replying affidavit of Mulee Ndetei - the 1st Respondent sworn on 24/12/2023. He depones that he has the authorities of the three correspondents to swear the affidavit, and attaches the said authority as MN 1.
5. She deponed that the applicants are her biological daughters and they do not have superior authority over the estate, that her deceased husband had distributed the estate among the wives and directed how each house would share their share, and that in any event the court ordered for equal distribution of the estate as per the certificate of confirmation of grant and the applicants already had shares as per the Form 54, and that the court never issued any ruling on 16th November 2023 ;
6. The certificate of confirmation of grant is annexed as MN -2
7. Parties filled written submission through their respective counsel.
8. For the Appellants/Applicants - it is submitted that the Applicants have not been factored in the distribution of the estate and the respondents have begun to dispose of the estate.
It is submitted that there has been no delay in the filing of the application and the memorandum of appeal: On security - that the estate is sufficient security: On the merit of the appeal - that they have an arguable appeal.
9. On whether the court should grant preservatory and protective orders - it is submitted that the applicants simply need to establish the following;
a. That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the Applicant unless Preservatory orders of inhibition are issued.
b. That the refusal to grant orders of inhibition would render the Applicant’s suit nugatory.
c. That the Applicant has arguable case.
10. For this proposition the applicants rely on the Re estate of Jeremiah Ngiri Kibati (Deceased) [2019] eKLR and cited with approval in Japhet Kaimenyi M’ndatho vs M’ndatho M’mbwiria [2012] eKLR.
11. It is submitted that the annexed sale agreement of plot KAI settlement scheme are proof of their fears further that some of the properties had already been registered in the name of some of the beneficiaries before the confirmation of the grant. Further that the applicants had been discriminated in the distribution because of their gender, and that this was anathema as per the Court of Appeal in Stephen Gitonga M’ Murithi Vs Faith Ngiramurithi [2015] eKLR where it emphasized that Section 38 of the LOSA provides for equal distribution of the net estate of the deceased to his children irrespective of gender.
12. It is submitted that Section 47 of the Law of Succession Act gives the court wide discretion to deal with both testamentary and administrative issues. counsel cites Page 115 of the book ‘Law of Succession’, Law Africa by William Musyoka.
13. For the respondents it is submitted that the court has discretion to determine whether/not to grant stay of execution. Counsel cites Antoine Ndiaye vs African Virtual University [2015]eKLR where it was held that stay of execution should only be allowed where there is sufficient cause, guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rule.
It is submitted, on the strength of Chege vs Gachura (Civil Appeal 265/2023) [2024] KEHC 1994 (KLR) 29/2/2024.
14. On substantial loss - it is submitted ; that the applicants stand to suffer substantial loss as the respondents have already commenced execution of the confirmed grant in succession case No. 98 of 2016 and will soon involve a surveyor to subdivide the property since some of them had already sold some sections of the estate to 3rd parties; that the appellants are apprehensive that the subject matter of the suit being Plot No. 220, 223 Kai B Settlement Scheme that holds their family home and plot Number 2452 Mang’elete Settlement Scheme may be transferred to the respondents and 3rd parties;that they stand to suffer irreparable damage as their share of the deceased’s property will be disposed by the respondents, and that the respondents had already sold of sections of the said estate to 3rd parties before the grant.
15. For the Respondents it is argued that the execution has not started and therefore application is unwarranted. That in any event, even if the execution had commenced that would not amount to substantial loss. See James Wangalwa and Another vs Agnes Naliaka Cheseto [2012] eKLR - where the court stated that execution is in itself a lawful process and the applicant must establish “other factors which show that the execution will create a state of affairs that may irreparably affect the very core of the applicant…”
16. It is also argued that the 1st respondent never sold off any of the estate’s parcel of land ; that it was Festus Mbusya who is not party to this suit, who sold off his rightful portion to one Cynthia Mueni before filing of this appeal and upon issuance of the certificate for confirmation of grant, that the appellants are not at risk of being dispossessed of the suit property; that their respective shares are held in trust by the 1st Respondent who is their biological mother with superior priority as per the schedule of distribution in the certificate of confirmation of grant dated 16th October 2023, that the appellants are residents of the estate of the deceased, and that the court ordered for equal distribution.
17. It is also submitted that the appellants did not seek leave to file the appeal.
18. On timeliness of the application - it is submitted that unreasonable delay depends on the circumstances of each case - that in this case - the grant was confirmed on 16/10/2023, the intended appeal and the application were filed on 2/112023 - the respondent relies on Jaber Mohsen Ali and Another vs Priscilla Boit and Another [2014] eKLR.
19. On deposit of security, it is submitted that failure to deposit security; the application fails. The respondent relies on Arun C. Sharma vs Ashana Raikundalia T/A Raikundalia; Co. Advocates [2014] eKLR.
20. The court is urged to dismiss the application for failing to achieve the requisite threshold.
21. On whether the appellants/applicants deserve the preservatory and protective orders sought, it is submitted the applicants must establish specific circumstances – of wasting of assets. They rely on Kamwanza Kiili & 2 Others [2024] eKLR.
- That the purpose of the orders is to protect the subject matter so that it will be the same it was at the commencement of the matter and the court must be satisfied that if the orders are not granted subject matter will change. That the conditions to be complied with are elaborated in Re Estate of Kimendero (Deceased) [2020] eKLR;
• That the applicant has an arguable case.
• The property is estate property.
• The property is likely to be dissipated/wasted away further as per Japheth Kaimenyi M’ndatho herein above.
“That an Applicant in an application for preservatory orders has to satisfy the following conditions:
a. That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the Applicant unless preservatory orders of inhibition are issued.
b. That the refusal to grant orders of inhibition would render the Applicant’s suit nugatory.
c. That the Applicant has arguable case.”
22. Further that in the matter of the estate of Paulo Kiplagat Boiwo (Deceased) [2012] eKLR.
“The court held that: accordingly, preservatory orders are in essence similar to injunctive orders, the court while affirming that preservatory orders are similar to injunctive orders noted that applicants have to abide by the conditions set out in the celebrated case of Giella vs Cassman Brown (1973) E.A 358 namely the Applicant must :-
a) Make out a prima facie case and;
b) Show that they will suffer irreparable loss which loss cannot be compensated by damages and;
c) Lastly that the balance of convenience should tilt in their favour where doubt exists.
23. It is submitted that the applicants are residents of plot 223, KAI B and as such the estate cannot be wasted; that no cogent evidence has been produced to demonstrate the alleged sale of the estate. Further, that the only sale was by one Festus Mbusya to one Cynthia Mueni of his own share, when the Confirmation of Grant was issued - yet he is not a party to appeal.
24. From the foregoing there are several issues for determination:-
i. Whether the appeal was filed without leave and if so - what are consequences.
ii. Whether the applicants have established the threshold for stay of execution.
iii. Whether the prayer for preservatory and protective orders is merited
25. On the 1st issue - I have considered the submissions by the respondent on this issue - I have also considered the fact that the applicant did not respond to the issue. What I note is that the respondents have not been prejudiced by the procedure adopted by the applicant.
26. On the stay of execution, the applicants seek stay of execution of the grant for fear that their home will be sold. The 1st respondent has no intention of selling that home, secondly it is evident from the ruling of the subordinate court that the trial magistrate divided the estate among the 4 houses of the deceased giving each home 42 Acres. He says it is in accordance with the wishes of the deceased a fact that is disputed by the applicants and which fact will be in issue in the appeal - in view of section 40 of the Law of Succession Act.
27. Hence even though the other houses may be in agreement, the applicants are entitled to question the distribution if they are of the view that it is not fair or just. Section 40 of the Law of Succession Act requires that where the deceased was polygamous the no. of beneficiaries in each house be considered as units. The trial court stated that house 1 had 4 beneficiaries, house 2 - 9 beneficiaries, house 3 - 8 beneficiaries and house 4 - 5 beneficiaries. Evidently the applicants here have an arguable appeal as the alleged wishes are contested by the applicants. On preservation of the estate - one can see from the sale of land by Festus Mbusya Ndetei to one Cynthia Mueni - the sale agreement is dated 26/11/2019. The sellers are listed as ;
a. Mulee Ndetei
b. Festus Mbusya Ndetei
c. Kisilu Ndetei
28. While Festus is said to be the one selling his share of the estate as at that time there was no Confirmation of Grant and he did not know what his share was. He had no land to sell as the land belonged to the Estate of the deceased.
29. The fact that Mulee Ndetei is seller No. 1 exposes her as an administrator who may not be able to maintain the integrity of the estate by the time the estate is distributed.
30. Henry Mbusya Ndetei was not an administrator of the estate at the time of sale - It is Mulee Ndetei who was and still is - by appearing on the sale agreement at a time when there was no Confirmation of Grant- she acted contrary to her mandate as a legal representative of the estate. Any sale that took place with her authority is null and void. The seller had no authority to sell the land because by then his share of the estate was not known.
31. On security It is my view that the respondents will not suffer any prejudice as the issue is about the estate of the deceased.
32. Having perused the memorandum of appeal and the issues raised therein - it is clearly evident that a certificate of confirmation of grant to Mulee Ndetei could lead to wasting of the estate while the appeal is pending.
33. Secondly an order for the preservation of the estate is necessary considering the evidence of the sale of a portion of the estate by Mulee and Henry.
34. In the circumstance, I find that the application has merit and is allowed. That an order be and is hereby issued for stay of execution of the grant as confirmed , and a further order be and is hereby issued for the preservation of the estate - pending the hearing and determination of the appeal.
35. Each party to bear its own costs
Dated signed and delivered virtually this 24th October 2023.
Mumbua T Matheka
Judge
CA Chrispol
'
1. Before me is the Chamber Summons dated 2/11/2023 under order 42 Rule , rule 59 P&A rules, sections 45 , 47 50 (I), 55 of the LOSA, sections 1A and 1 B, 3A of the Civil Procedure Act. The applicants seek the following:
1) Spent.
2) That this Honourable Court be pleased to issue a stay of confirmation of the Grant as directed by Honourable B. N. Ireri on the 16th October 2023 pending the hearing and determination of the appeal by the Appellants/ Applicants herein.
3) Spent.
4) Spent.
5) That pending the hearing and determination of the Appeal herein, there be preservatory and protection orders against the Respondents herein together with their servants, agents and/ or any other persons whomsoever against interference and intermeddling with the assets of the deceased’s estate in any way.
6) That this Honourable Court makes any other appropriate orders to preserve the estate of the deceased, subject matter of the Appeal herein.
7) That the costs of this Application be provided.
2. The grounds for the Summons are set out on the face of the application and the affidavit in support sworn by Florence Nditi Ndetei on even date.
3. The key ground is that one of the parties that was in the certificate of confirmation of grant - plot No. 223 KA/‘B’ settlement scheme took the family home and stands the risk of disposal by the respondent. The consequence of which would be irreparable harm visited upon the applicants, who are siblings.
4. The application is opposed vide the replying affidavit of Mulee Ndetei - the 1st Respondent sworn on 24/12/2023. He depones that he has the authorities of the three correspondents to swear the affidavit, and attaches the said authority as MN 1.
5. She deponed that the applicants are her biological daughters and they do not have superior authority over the estate, that her deceased husband had distributed the estate among the wives and directed how each house would share their share, and that in any event the court ordered for equal distribution of the estate as per the certificate of confirmation of grant and the applicants already had shares as per the Form 54, and that the court never issued any ruling on 16th November 2023 ;
6. The certificate of confirmation of grant is annexed as MN -2
7. Parties filled written submission through their respective counsel.
8. For the Appellants/Applicants - it is submitted that the Applicants have not been factored in the distribution of the estate and the respondents have begun to dispose of the estate.
It is submitted that there has been no delay in the filing of the application and the memorandum of appeal: On security - that the estate is sufficient security: On the merit of the appeal - that they have an arguable appeal.
9. On whether the court should grant preservatory and protective orders - it is submitted that the applicants simply need to establish the following;
a. That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the Applicant unless Preservatory orders of inhibition are issued.
b. That the refusal to grant orders of inhibition would render the Applicant’s suit nugatory.
c. That the Applicant has arguable case.
10. For this proposition the applicants rely on the Re estate of Jeremiah Ngiri Kibati (Deceased) [2019] eKLR and cited with approval in Japhet Kaimenyi M’ndatho vs M’ndatho M’mbwiria [2012] eKLR.
11. It is submitted that the annexed sale agreement of plot KAI settlement scheme are proof of their fears further that some of the properties had already been registered in the name of some of the beneficiaries before the confirmation of the grant. Further that the applicants had been discriminated in the distribution because of their gender, and that this was anathema as per the Court of Appeal in Stephen Gitonga M’ Murithi Vs Faith Ngiramurithi [2015] eKLR where it emphasized that Section 38 of the LOSA provides for equal distribution of the net estate of the deceased to his children irrespective of gender.
12. It is submitted that Section 47 of the Law of Succession Act gives the court wide discretion to deal with both testamentary and administrative issues. counsel cites Page 115 of the book ‘Law of Succession’, Law Africa by William Musyoka.
13. For the respondents it is submitted that the court has discretion to determine whether/not to grant stay of execution. Counsel cites Antoine Ndiaye vs African Virtual University [2015]eKLR where it was held that stay of execution should only be allowed where there is sufficient cause, guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rule.
It is submitted, on the strength of Chege vs Gachura (Civil Appeal 265/2023) [2024] KEHC 1994 (KLR) 29/2/2024.
14. On substantial loss - it is submitted ; that the applicants stand to suffer substantial loss as the respondents have already commenced execution of the confirmed grant in succession case No. 98 of 2016 and will soon involve a surveyor to subdivide the property since some of them had already sold some sections of the estate to 3rd parties; that the appellants are apprehensive that the subject matter of the suit being Plot No. 220, 223 Kai B Settlement Scheme that holds their family home and plot Number 2452 Mang’elete Settlement Scheme may be transferred to the respondents and 3rd parties;that they stand to suffer irreparable damage as their share of the deceased’s property will be disposed by the respondents, and that the respondents had already sold of sections of the said estate to 3rd parties before the grant.
15. For the Respondents it is argued that the execution has not started and therefore application is unwarranted. That in any event, even if the execution had commenced that would not amount to substantial loss. See James Wangalwa and Another vs Agnes Naliaka Cheseto [2012] eKLR - where the court stated that execution is in itself a lawful process and the applicant must establish “other factors which show that the execution will create a state of affairs that may irreparably affect the very core of the applicant…”
16. It is also argued that the 1st respondent never sold off any of the estate’s parcel of land ; that it was Festus Mbusya who is not party to this suit, who sold off his rightful portion to one Cynthia Mueni before filing of this appeal and upon issuance of the certificate for confirmation of grant, that the appellants are not at risk of being dispossessed of the suit property; that their respective shares are held in trust by the 1st Respondent who is their biological mother with superior priority as per the schedule of distribution in the certificate of confirmation of grant dated 16th October 2023, that the appellants are residents of the estate of the deceased, and that the court ordered for equal distribution.
17. It is also submitted that the appellants did not seek leave to file the appeal.
18. On timeliness of the application - it is submitted that unreasonable delay depends on the circumstances of each case - that in this case - the grant was confirmed on 16/10/2023, the intended appeal and the application were filed on 2/112023 - the respondent relies on Jaber Mohsen Ali and Another vs Priscilla Boit and Another [2014] eKLR.
19. On deposit of security, it is submitted that failure to deposit security; the application fails. The respondent relies on Arun C. Sharma vs Ashana Raikundalia T/A Raikundalia; Co. Advocates [2014] eKLR.
20. The court is urged to dismiss the application for failing to achieve the requisite threshold.
21. On whether the appellants/applicants deserve the preservatory and protective orders sought, it is submitted the applicants must establish specific circumstances – of wasting of assets. They rely on Kamwanza Kiili & 2 Others [2024] eKLR.
- That the purpose of the orders is to protect the subject matter so that it will be the same it was at the commencement of the matter and the court must be satisfied that if the orders are not granted subject matter will change. That the conditions to be complied with are elaborated in Re Estate of Kimendero (Deceased) [2020] eKLR;
• That the applicant has an arguable case.
• The property is estate property.
• The property is likely to be dissipated/wasted away further as per Japheth Kaimenyi M’ndatho herein above.
“That an Applicant in an application for preservatory orders has to satisfy the following conditions:
a. That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the Applicant unless preservatory orders of inhibition are issued.
b. That the refusal to grant orders of inhibition would render the Applicant’s suit nugatory.
c. That the Applicant has arguable case.”
22. Further that in the matter of the estate of Paulo Kiplagat Boiwo (Deceased) [2012] eKLR.
“The court held that: accordingly, preservatory orders are in essence similar to injunctive orders, the court while affirming that preservatory orders are similar to injunctive orders noted that applicants have to abide by the conditions set out in the celebrated case of Giella vs Cassman Brown (1973) E.A 358 namely the Applicant must :-
a) Make out a prima facie case and;
b) Show that they will suffer irreparable loss which loss cannot be compensated by damages and;
c) Lastly that the balance of convenience should tilt in their favour where doubt exists.
23. It is submitted that the applicants are residents of plot 223, KAI B and as such the estate cannot be wasted; that no cogent evidence has been produced to demonstrate the alleged sale of the estate. Further, that the only sale was by one Festus Mbusya to one Cynthia Mueni of his own share, when the Confirmation of Grant was issued - yet he is not a party to appeal.
24. From the foregoing there are several issues for determination:-
i. Whether the appeal was filed without leave and if so - what are consequences.
ii. Whether the applicants have established the threshold for stay of execution.
iii. Whether the prayer for preservatory and protective orders is merited
25. On the 1st issue - I have considered the submissions by the respondent on this issue - I have also considered the fact that the applicant did not respond to the issue. What I note is that the respondents have not been prejudiced by the procedure adopted by the applicant.
26. On the stay of execution, the applicants seek stay of execution of the grant for fear that their home will be sold. The 1st respondent has no intention of selling that home, secondly it is evident from the ruling of the subordinate court that the trial magistrate divided the estate among the 4 houses of the deceased giving each home 42 Acres. He says it is in accordance with the wishes of the deceased a fact that is disputed by the applicants and which fact will be in issue in the appeal - in view of section 40 of the Law of Succession Act.
27. Hence even though the other houses may be in agreement, the applicants are entitled to question the distribution if they are of the view that it is not fair or just. Section 40 of the Law of Succession Act requires that where the deceased was polygamous the no. of beneficiaries in each house be considered as units. The trial court stated that house 1 had 4 beneficiaries, house 2 - 9 beneficiaries, house 3 - 8 beneficiaries and house 4 - 5 beneficiaries. Evidently the applicants here have an arguable appeal as the alleged wishes are contested by the applicants. On preservation of the estate - one can see from the sale of land by Festus Mbusya Ndetei to one Cynthia Mueni - the sale agreement is dated 26/11/2019. The sellers are listed as ;
a. Mulee Ndetei
b. Festus Mbusya Ndetei
c. Kisilu Ndetei
28. While Festus is said to be the one selling his share of the estate as at that time there was no Confirmation of Grant and he did not know what his share was. He had no land to sell as the land belonged to the Estate of the deceased.
29. The fact that Mulee Ndetei is seller No. 1 exposes her as an administrator who may not be able to maintain the integrity of the estate by the time the estate is distributed.
30. Henry Mbusya Ndetei was not an administrator of the estate at the time of sale - It is Mulee Ndetei who was and still is - by appearing on the sale agreement at a time when there was no Confirmation of Grant- she acted contrary to her mandate as a legal representative of the estate. Any sale that took place with her authority is null and void. The seller had no authority to sell the land because by then his share of the estate was not known.
31. On security It is my view that the respondents will not suffer any prejudice as the issue is about the estate of the deceased.
32. Having perused the memorandum of appeal and the issues raised therein - it is clearly evident that a certificate of confirmation of grant to Mulee Ndetei could lead to wasting of the estate while the appeal is pending.
33. Secondly an order for the preservation of the estate is necessary considering the evidence of the sale of a portion of the estate by Mulee and Henry.
34. In the circumstance, I find that the application has merit and is allowed. That an order be and is hereby issued for stay of execution of the grant as confirmed , and a further order be and is hereby issued for the preservation of the estate - pending the hearing and determination of the appeal.
35. Each party to bear its own costs
Dated signed and delivered virtually this 24th October 2023.
Mumbua T Matheka
Judge
CA Chrispol
'