In the Estate of GEORGE ABOGE OWALLO

1. The Applicant Lucy Wambui Aboge filed application dated 17^th November, 2023 seeking leave to file appeal against the Judgment dated 20^th October 2023 and also orders staying the said judgment.
2. The Application is premised on the grounds on the face of the application and supporting affidavit of the applicant sworn on 7^th November, 2023.
3. The application was opposed by the Replying Affidavit of Beatrice Wamuyu Aboge sworn on 16^th November, 2023.
4. The 2^nd Respondent averred that the estate of their late husband was distributed proportionally and she said she had no problem with the judgment dated 7^th October 2023.
5. She also said the Applicant had been collecting rent from 28 rooms in LR No.  Aguthi/Gatitu/1744 since their husband died and had refused to allow them access to the said plot to collect rent as per the order of the court.  She said that the Applicant had demolished rooms made of timber and left those made of stones and had also constructed a permanent house on the same plot thus denying  her and the 1^st Respondent  access to the same.
6. The 2^nd Respondent averred that if stay is granted her and the  1^st Respondent will continue to suffer financially. She said the intended appeal is meant to deny her and her co-wife the outcome of the judgment  and pave way  for the Applicant to continuing collecting  rent on the remining 14 rooms.
7. The 2^nd Respondent urged that the Applicant should be compelled to give her access to the 9 rooms that the court awarded to her.  She further said that it had  it had not been shown that the intended appeal would be rendered nugatory if stay is not granted.   That the Applicant did not prove that the intended appeal would be successful. The 2^nd Respondent said the application is malicious, frivolous and vexatious and is meant to delay the Respondents the fruits of judgment and should be struck off with costs.
8. Directions were taken that the application be heard by way of written submissions.
9. The Applicants submission are dated 19^th March, 2024 and were filed on the same date.
10. This court has not seen submissions filed by the 2^nd Respondent who opposed the application.
11. Having considered the application and the supporting affidavit, the Replying Affidavit and the Applicants submission, the issues for determinations are:-

i) Whether the Applicant has satisfied conditions for grant of leave to appeal to the Court of Appeal under the Law of Succession Act;

ii) Whether the Appellant has established sufficient grounds why stay of the judgment of this court  should be  granted.

1. Section 50 (1) and (2) of the Law of Succession Act provides that an appeal to the High Court from the Magistrates court is final

“Section 50 (1)   An appeal shall lie to the High Court in respect of any order or decree made by a resident magistrate in respect of any estate and the decision of the High Court thereon shall be final.

Section 50 (2)   An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi's Court in respect of the estate of the deceased Muslim and with prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.”

1. Section 50(1) of the Law of Succession speaks to the finality of proceedings in succession causes from the magistrate’s courts to the High Court on Appeal.   However, appeal lies to the Court of Appeal from the decision of the High Court where  it is excusing its appellate jurisdiction in an appeal from the Kadhi’s Court in respect of the estate of a deceased Muslim and with prior leave thereof in respect of any Muslim Law to  the court of Appeal
2. In the case of Julius Kamau Kithaka vs. Waruguru Kithaka Nyaga & 2 Others [2013] eKLR the Court of Appeal held:-

“It is trite law that where any proceedings are governed by a special Act of Parliament, like in this case, the Law of Succession Act, the provisions of such an Act must be strictly construed and applied. See Josephine Wambui Wanyoike -vs- Margaret Wanjira Kamau & another – Civil Appeal No. 279 of 2003 & H. Adongo & Others -vs-Savings and Loan Society (Kenya) Ltd.- Civil Appeal No, 22 of 1987. Therefore, what is in the Law of Succession Act is what was intended to be therein in the manner and extent it is there. What is not therein expressly is what was intended not to be there by the legislator.”

1. In Rhoda Wairimu Karanja & Another vs. Mary Wangui Karanja & Another the court of Appeal dealt with the question whether an appeal  would lie  to the  Court of Appeal from  the decision of the  High Court exercising  original jurisdiction  it was held that  a party would only  appeal with leave  of the High Court and where such leave is  declined, then with leave of the Court of  Appeal.
2. In this case the court was exercising its original jurisdiction when it heard and delivered a judgment on 20^th October 2023.   It is therefore clear that appeal lies to the Court of Appeal with leave of the High Court.
3. Grant of leave is an exercise of the courts  discretion of a judge where it is proved that grounds of intended appeal are arguable.
4. From the proceedings that led to the judgment dated 20/10/2023 the Applicant Lucy Wambui Aboge – testified as DW1 and she was agreeable to the mode of distribution proposed by Orpha Adongo Aboge the 1^st Respondent herein.
5. Having agreed with the proposal made by the 1^st Respondent the Court  distributed the estate of the deceased as nearly as possible to the proposal made by the 1^st Respondent – the 1^st wife to the deceased.

    20.This court therefore finds that the Applicant has not satisfied this court that  she is entitled to the discretionary orders for leave to appeal and stay of  execution of the judgment delivered on 20.10.2023.

21.The application dated 17^th November, 2023 is therefore dismissed with costs to Respondents.

Delivered dated and signed at Migori this 31^st day of October, 2024.