1. Before this court for determination is a Summons dated 14th August 2024 brought under Sections 47 of the Law of Succession Act and Rules 49, 59, 63 & 73 of the Probate and Administration Rules seeking among others leave to file and serve the Notice of Appeal filed out of time to the Superior Court at Machakos, and an order for stay of execution of the Ruling delivered on 17th July 2024 pending the hearing and determination of the intended appeal.
2. The application is supported by the grounds on the face of it as well as the supporting affidavit sworn on 14th August 2024 by Josephat Musyoka Mua. The Applicant deponed that he is aggrieved by the Ruling delivered on 17th July 2024 and since there is no automatic right of appeal from the decisions of the High Court to the Court of Appeal in probate and administration matters, he now seeks leave to appeal before filing the appeal. The Applicant states that he resides in the USA and was therefore unable to actively follow up on the matter, and that his previous advocate failed to file the Notice of Appeal within time despite being duly instructed. He asserts that he has an arguable appeal as set out in the draft Memorandum of Appeal, and is apprehensive that the Respondents may proceed to execute and/or implement the subject Ruling, which would render the intended appeal nugatory.
3. The Application was opposed by the Respondents through a Replying Affidavit sworn on 16th September 2024 by the 1st Respondent. In her deposition, the 1st Respondent stated that in delivering the impugned ruling, the court considered the interests of all the beneficiaries and the estate. She deposed that the Applicant is interested in continuing to cause chaos and unnecessary disputes, which the other beneficiaries are not interested in. She further asserted that if the orders sought are granted, the estate will remain without administrators, thereby exposing it to intermeddling to the detriment of all beneficiaries. She maintained that the only way to resolve the matter is by distributing the estate so that each beneficiary receives their rightful share, and that the Applicant should not prejudice the interests of the other beneficiaries. The 1st Respondent further contended that the draft grounds of appeal do not raise any triable issues to warrant troubling the Court of Appeal. She argued that no cogent reasons have been advanced for the failure to lodge the Notice of Appeal within time, and that accordingly, leave should be denied as the conditions set under Order 42 Rule 6(2) of the Civil Procedure Rules for the grant of stay have not been satisfied.
4. The 1st Respondent also deponed that pursuant to the directions issued by this Court on 1st September 2024, the Applicant was granted leave to file appeal against the Ruling delivered on 17/7/2024 to the Court of Appeal and was further directed to file and serve the Notice of Appeal upon the Respondents. Parties were directed to canvass the application by way of written submissions. The Applicant filed his submissions dated 18th October 2024 while the Respondent’s submissions are dated 18th September 2024.
Applicant’s submissions
5. The Applicant submitted on two issues namely; whether leave to appeal to the Court of Appeal should be granted and whether stay of execution should be granted.
6. On the first issue, the Applicant made reference to the case of John Mwita Murimi & 2 others v Mwikabe Chacha Mwita & Another [2019] eKLR, acknowledging that there is no automatic right of appeal to the Court of Appeal from decisions of the High Court. While relying on the cases of In Re Estate of Wanga Ole Oiyie [2022] eKLR and Kenya Power & Lighting Company Limited v Rose Anyango & Another [2020] eKLR, the Applicant submitted that he has arguable grounds of appeal with a probability of success, as demonstrated in the draft Memorandum of Appeal.
7. On the second issue, the Applicant submitted that for the court to grant stay pending the intended appeal, it must consider whether the Applicant has an arguable appeal with high chances of success. In reliance on the case of Nyidha v Nyidha & Another (Succession Appeal E012 of 2023) [2024] KEHC 2715 (KLR) (19 March 2024) (Ruling), the Applicant submitted that he resides in the United States of America and is therefore unable to actively monitor the administration of the Estate, which may be subjected to destruction by the newly appointed administrators. He contended that if the subject Estate is destroyed by the said administrators, the intended appeal will be rendered nugatory.
8. The Applicant concluded by submitting that it is in the interest of justice that stay pending appeal be granted, so as to preserve the subject matter and ensure that the intended appeal is not rendered nugatory.
1st, 2nd & 3rd Respondent’s submissions
9. The Respondents submitted on two issues for determination, that is, whether the leave to appeal to the Court of Appeal should be granted and whether stay of execution should be granted.
10. On the first issue, the Respondents submitted that the Applicant has not demonstrated that there is any substantial question requiring further or serious discriminating interrogation by a higher court. Relying on the cases of Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another [2014] eKLR and In Re Estate of Wanga Ole Oiyie [2022] eKLR, the Respondents prayed that leave to appeal be denied, taking into account the circumstances of the case.
11. On the second issue, the Respondents submitted that no candid reasons have been advanced to justify the stay of the ruling delivered on 17th July 2024, and that the threshold for grant of stay has not been met. They contended that no substantial loss or irreparable damage has been demonstrated; that no estate property is being sold; that no property is being used to the exclusion of the Applicant; and that it is, in fact, the Applicant who seeks to exclude the rest of the beneficiaries. The Respondents further argued that there is no adverse order made against the Applicant capable of being stayed, that the orders in question merely serve to preserve the estate, and that referring the matter to mediation for amicable settlement was appropriate. They also contended that there is nothing improper in the court appointing administrators, that distribution is yet to take place, and that the power to appoint administrators rests with the court. The Respondents asserted that staying the ruling would prejudice the other beneficiaries by leaving the estate without administrators, exposing it to wastage and intermeddling, given its vastness. They emphasized that there is no law mandating that the Applicant must be the sole administrator to the exclusion of others, nor can such insistence override the court’s residual power to appoint administrators. The Respondents concluded that the other beneficiaries are keen to finalize the administration of the estate, and that the only way to resolve the matter is by distributing the estate among all the beneficiaries.
12. The Respondents concluded by submitting that the Applicant is putting unnecessary financial strain on the other beneficiaries and pray that the application be dismissed with costs.
Analysis and Determination
13. I have considered the affidavits by parties and submissions made in respect of the summons and it is my view that two issues arise for determination first, whether leave to appeal should be granted and second, whether an order for stay of execution of the ruling delivered on 17/7/2024 pending appeal should be granted.
a. Whether leave to appeal should be granted
14. The Court of Appeal in the case of Rhoda Wairimu Karanja & Another -Vs- Mary Wangui Karanja & Another [2014 eKLR while addressing itself to the right to appeal against the decisions of the High Court when exercising its original jurisdiction in succession matters held as follows:
“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.”
15. In John Mwita Murimi & 2 Others v. Mwikabe Chacha Mwita & Another [2019] eKLR, the Court of Appeal re-affirmed this position by holding as follows:
“…Under the Law of Succession Act, there is no express automatic right of Appeal 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…”
16. From the foregoing authorities, it is clear that this court may grant the leave sought by the Applicant where circumstances warrant, such as where weighty issues arise that require further serious judicial consideration and interrogation. Should this court decline to grant leave, the Applicant will still be at liberty to seek the same before the Court of Appeal.
17. The genesis of the leave to appeal stems from the court’s Ruling of 17th July 2024 where the court inter alia issued directions to the effect that:
“
1. The parties herein are all appointed as joint administrators of the estate of Dorothy Justus Kivondo and the Registrar is directed to forward the relevant notices for gazettement.
2. The parties herein are directed to attend court annexed mediation to agree on issues relating to preservation of the estate, its use & occupation of the estate properties which was to be done within 60 days from the date the court mediator is appointed.
3. Pending completion of the mediation process no new farming activity will be carried.”
18. I have carefully considered the issues raised by the Applicant in his supporting affidavit. His assertion is that he is aggrieved with the ruling delivered, and that his intended appeal raises arguable issues. The draft memorandum of appeal annexed to the supporting affidavit is based on the following grounds: that the trial Judge erred in law and in fact in failing to appreciate that the appellant was not involved in the filing of the petition for letters of administration for the instant estate; in failing to appreciate that the appellant has not been meddling with the subject estate; in failing to appreciate that it is the respondents who have continuously been intermeddling with the estate of the subject deceased; in failing to take into consideration the sentiments of the clan in resolving the dispute; in failing to appreciate that the respondents averments were marred with fraud and material non-disclosure; in failing to consider the appellant’s case and by considering extraneous factors when deciding the case.
19. I have also considered the Ruling upon which the appeal is intended and do note that the ruling seeks to appoint new administrators to the estate. The applicant’s contention is that he resides in the United States of America and therefore will not be able to actively follow up on the estate which may be subject to destruction by the other newly appointed administrators who have been meddling with it. The applicant does not state how they have meddled with and as such his assertions are speculative. This Court is also mindful that there exists recourse before court against persons meddling in the estate at any stage of the succession process.
20. From the grounds of appeal adduced, I do not find any of the averments weighty enough to warrant the grant of leave to appeal at this juncture. The directions issued by the court on 17th July 2024 were inclusive and adequately safeguarded the interests of all beneficiaries by protecting the estate pending distribution. The Applicant has not raised any substantive points of law that merit consideration by the Court of Appeal. In any event the appointment of administrators is the initial stages of the succession process, and upon appointment, they are required to follow the process under the law of succession as well as the Probate and Administration Rules and report back to court for accountability purposes. This still presents an opportunity to the applicant to raise any issue on the conduct or act of the administrators with regard to the estate.
21. Accordingly, I am not persuaded to grant leave to appeal as sought in the absence of weighty issues or circumstances that require further serious judicial consideration and interrogation.
22. Having found that the prayer for leave to file an appeal at the Court of Appeal is unmerited, it follows that the issue of stay of execution does not arise and any consideration thereof would be an exercise in futility. At any rate, the parties have been directed to attend to mediation, the court having restricted any further farming.
23. Accordingly, for the reasons set out above, this court finds the appellant’s application dated 14th August 2024 to be devoid of merit and the same is thus dismissed with no order as to costs since it is a family dispute.
Orders accordingly