- Before this court for determination is the summons dated 2nd March, 2023 by which the Applicants seek the following orders
“1 SPENT
2 SPENT
3 SPENT
4 THAT the Honourable Court be pleased to issue an order of stay of Execution of the order issued on 17th February, 2023 pending the hearing and determination of the intended appeal to the Court of Appeal.
5 THAT, the costs of this application be provided for.”
2. The application which was premised upon Section 47 of the Succession Act and Rule 73 of the Probate and Administration Rules was supported by the Affidavit of even date sworn by the 2nd Appellant WASHINGTON MUCHIRI MUTURI.
3. The Respondents opposed the application through the Replying Affidavit dated 17th March, 2023, sworn by the 1st Respondent NICKSON MWANGI MUTURI.
4. The matter was canvassed by way of written submissions. The
Applicants filed the written submissions dated 12th April, 2023 whilst
the Respondents relied upon the written submissions dated 20th April,
2023.
BACKGROUND
6. This matter concerns the estate of the late GERALD MUTURI MAINA
(hereinafter ‘the Deceased’) who passed away on 10th January,
2011. A copy of the Death Certificate Serial Number 051429 appears
as Annexture ‘A’ to the Affidavit in support of the petition for letters of
Administration dated 21st July, 2011.
7. The Deceased who died intestate was survived by the following persons:-
(a) Eunice Wairimu Muturi - Widow
(b) Stephen Maina Muturi - Son
(c) Washington Muchiri Muturi - Son
(d) Grace Waithera Muturi - Daughter
(e) Anthony Murathi Muturi - Son
(f) Catherine Nyambura Muturi - Daughter
(g) Nickson Mwangi Muturi - Son
(h) Elizabeth Wanjiku Muturi - Son
8. Following the demise of the Deceased Grant of letters of Administration
intestate was on the October 2011 made to Eunice Wairimu Muturi
(Widow) and Washington Muchiri Muturi (Son). A Certificate of
Confirmed Grant was thereafter issued to the two (2) Administrators
on 1st April 2014 which Grant was later rectified on 28th January,
2015. The confirmed grant set out the mode of distribution of the
estate.
9. The parties herein are all beneficiaries of the estate of the Deceased.
The Respondents are a son and a daughter of the Deceased whilst the
1st Applicant is the widow of the Deceased. The 2nd to 5th Applicants are
also children of the Deceased and the siblings of the 1st and 2nd
Respondent.
10. The Respondent contend that the Administrators and some of the
beneficiaries have converted and alienated estate funds and assets for
their own personal gain and to the detriment of the Respondents herein.
That although the estate assets were required under the terms of the
confirmed grant to be held by a limited liability company, to date more
than seven (7) years after the Grant was confirmed the said assets
have not been transferred.
11. The Respondents further aver that the Administrators continue to bank
income derived from the estate into an account which is under the sole
control of the 2nd Applicant and that the 2nd Applicant has not been
accountable to the other beneficiaries regarding these funds. That
dividends and bonuses which were initially paid to the beneficiaries have
not been paid for several years.
12. The Respondents alleged that an auditor appointed by themselves to
audit the estate accounts was denied access to the books by the 2nd and
3rd applicants. That the applicants have unreasonably demanded that
the 1st Respondent bear fifty per cent (50%) of the cost of auditing
the estate.
13. Vide an application dated 30th June, 2022 the Respondents sought
Inter alia orders to compel the Administrators of the estate to avail full
and accurate inventory of all the assets and liabilities of the Deceased
as well as a full and accurate account of their administration of the
estate from 14th October, 2011 to date.
12. In a ruling delivered on 17th February, 2023 this court made inter alia
the following orders
“…………I direct that the 1st and 2nd Respondents [the 1st and
2nd Applicants in this application] within sixty (60) days file
in court true accounts of all their dealings with the estate of
the Deceased from 1st April, 2014 to date…..”
13. Being aggrieved by the above orders the Applicants filed a Notice of
Appeal dated 21st February, 2023 (Annexture ‘WMMI’ to the
Supporting Affidavit dated 2nd March, 2023)
14. The Applicants also filed this present summons seeking to stay the
orders of the court pending hearing and determination of their intended
appeal.
15. As stated earlier the application was opposed.
ANALYSIS AND DETERMINATION
16. I have carefully considered the application before this court, the reply
filed thereto as well as the written submissions filed by both parties.
The Applicants herein have sought for an order of stay of ruling
delivered on 17th February, 2023 pending hearing of their intended
Appeal.
17. It is a fact that orders for stay of Execution which are provided for
under Order 42 Rule 6 of the Civil Procedure Rules cannot issue in Succession Proceedings. This is because Rule 63 of the Probate and Administration Rules which lists the orders of the Civil Procedure Rules which are to apply to Succession matters does not include order 42 as one of the orders applicable in the Succession Act.
18. In the matter of the Estate of Reuben Kiplagat Chesire
(Deceased) Succession Cause No. 1194 of 2009 Hon. Justice Musyoka held that
“…….As regards the jurisdiction in light of the provisions of Order 42 rule 6(1), (2) and (6) of the Civil Procedure Rules 2010 upon which the application based, I am in agreement with the Respondents’ contention that the order is not applicable in matters arising under the Law of Succession Act, and that the said provisions dealing with stay of execution pending appeal have not been imported into matters falling under the law of Succession Act by Rule 63 of the Probate and
Administration Rules. The Law of Succession is complete with
its own rules.”
19. Notwithstanding the above I will for purposes of completeness consider
the merits of the application for stay of Execution.
20. Order 42 Rule 6 which sets out the principles for stay of execution
provide as follows;-
- No appeal or second appeal shall operate as a stay of
execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appeal from may for sufficient cause order stay of execution of such decree or order, and whether the
application for such stay shall have been granted or
refused by the court appealed from, the court to which
such appeal is preferred shall be at liberty, on application
being made, to consider such application and to make
such order thereon as may to it seem just, and any person
aggrieved by an order of stay made by the court from
whose decision to appeal is preferred may apply to the
appellate court to have such order set aside. No order for
stay of execution shall be made under sub rule
(1) Unless -
(a) the court is satisfied that substantial loss may result
to the applicant unless the order is made and that the
application has been made without unreasonable
delay;
and
(b) such security as the court orders for the due
Performance of such decree or order as may
ultimately be binding on him has been given by the
applicant.
(c) ………………………………………………….”
20. Therefore in order to merit the orders being sought the applicants must
satisfy the court.
- That the application for stay was filed without
unreasonable delay.
- That they stand to suffer substantial loss unless the stay
order is granted.
- That security for the performance of the decree or order
has been given by the Applicants.
21. On the question of delay I note that the impugned ruling was delivered
on 17th February, 2023. This application for stay was filed on 2nd
March, 2023 barely two (2) weeks after the ruling had been
delivered. I am satisfied that this application has been brought in a
timely manner.
22. The Applicants object to the courts orders directing them to file full and
accurate inventory and accounts relating to their administration of the
estate of the Deceased.
23. In order to merit the order of stay the Applicant must satisfy the court
that execution of those orders is likely to cause them substantial loss.
24. It must be remembered that it is not the duty of this court to decide the
merits or otherwise of the intended appeal. The court is only required to
decide if a stay is merited.
25. In the ruling of 17th March, 2023, the court cited and relied upon the
provisions of Section 83 of the Law of Succession Act which sets out
the duties of an Administrator.
26. Section 83 (e) particularly provides that an Administrator is required
to supply
“a full and accurate inventory of the assets and liabilities of the Deceased and a full and accurate account of all dealings therewith upto the date of the account.”
27. Thus the duty to provide accounts is a statutory duty and is not a
figment of the courts imagination.
28. The 1st and 2nd Applicants do not deny that they were appointed as
Administrators to the estate of the Deceased in the year 2011. Why
would they be averse to providing accounts of how they have managed
the estate unless they have something to hide.
29. I do not see what nature of substantial loss would be occasioned to the
Applicants by directing that they comply with a statutory edict.
30. The estate property does not belong to the Administrators for them
to utilize as they wish. The Administrators are but Trustees and their
relationship with the beneficiaries is fiduciary in nature. They are
accountable to the court and to the beneficiaries regarding their
administration of the estate. [See ESTATE OF JULIUS MIMANO
(Deceased) [2019] eKLR]
31. Finally I find no persuasive reason/grounds to grant a stay of execution
of the ruling delivered on 17th February, 2024. This application has
no merit and the same is dismissed in its entirety. Costs will be met by
the Applicants.
Dated in Nyeri this 6th day of May, 2024.
…………………………………………