1. This is a very protracted matter, pitting siblings against each other. At issue is 1/6 share owned by the deceased in Title No. Mombasa/Block XVII/66. The 2nd Administrator/Applicant has a sentimental attachment to it and does not want it sold.
2. This Court issued a ruling on 17th October 2023 vide which it ordered as follows:-
“1. I order that the deceased’s estate, that is, the 1/6 share in Title No. Mombasa/Block XVII/66 be sold. The applicant shall have the first right to buy the same within 30 days of the date of this ruling. When calculating the purchase price, her share, as determined by the Chief Kadhi, shall be considered;
2. In the event that she is unable or unwilling to buy out her co-beneficiaries, the Respondent and or other beneficiaries shall have the right to buy out the Applicant’s share at the best possible open market value, within 30 days of the date the Applicant was deemed as unable or unwilling to exercise her right to purchase the same; and
3.If the Applicant and the Respondent cannot exercise their respective rights under Orders 1 and 2 above, then 1/6 share of Title No. Mombasa/Block XVII/66 shall be sold at the best possible open market value, and the proceeds therefrom distributed to the beneficiaries of the estate of the deceased in accordance with the advice of the Chief Kadhi dated 29th May 2017.”
3. Pursuant to the ruling, the 2nd Administrator/Applicant had until 17th November 2023 to buy out her co-beneficiaries so that she would be the sole owner of 1/6 share of Title No. Mombasa/Block XVII/66.
4. A day before the said expiry, she filed the instant Chamber Summons application seeking the following orders:-
1. This honourable Court be pleased to issue a temporary injunction stopping the Respondent or any other beneficiary from selling or buying the estate herein (1/6 share of Title No Mombasa/Block XVII/66) until the application is heard and determined;
2. This honourable Court be pleased to extend the time within which the Applicant can buy out the shares of the rest of the beneficiaries from the estate by 60 more days;
3. This honourable Court be pleased to order that distribution of the estate be effected by the two administrators by opening a joint account operated by both of them where the proceeds of the estate will be deposited for distribution;
4. The court do issue summons to all the beneficiaries herein to avail themselves in Court for the distribution of the estate; and
5. Costs of this application be borne by the estate.”
5. The 2nd Administrator/Applicant prayed, stating that she needed more time to secure the money to buy the estate, whose value she reckoned as Kes.6,039,366.68. At the time of filing the application, she stated that she had 2/3 of the said price.
6. The application is opposed. The 1st Administrator/Respondent filed a Replying Affidavit sworn on 29th November 2023, vide which he averred that the time within which the 2nd Administrator/Applicant could comply with the orders of the Court shouldn’t be extended.
7. The application came up for hearing on 21st November, 2023. On the said date, I granted the 2nd Administrator/Applicant’s prayer 1 of her application, on the condition that she would deposit Kes.4,026,244.45 in Court on or before 5 pm on 22nd November 2023. I gave the 1st Administrator/Respondent leave to file a Replying Affidavit within 7 days and directed that the matter would proceed by way of Written Submissions. I listed the matter for highlighting of the written submissions on 14th December 2004. The 2nd Administrator/Respondent never complied with my orders and failed to deposit the said amount in court.
8. On 14th December 2023, there was no appearance for the 2nd Administrator/Applicant. Although Ms. Iman, learned counsel for the 1st Administrator/Respondent, was ready to proceed, Mr. Yose, learned counsel for the 2nd Administrator/Applicant, indicated that he had no instructions. I therefore adjourned the matter to 15th January 2024.
9. I ordered Mr. Yose to file a formal application to cease acting. Mr Yose indicated to the Court on 25th January 2024 that he filed an application dated 20th January 2024 seeking to cease acting for the 2nd Administrator/Applicant. The Court has not, however, seen the said application.
10. On 2nd February 2024, this matter came up for highlighting of the Written Submissions; only the Written Submissions of the 1st Administrator/Respondent had been filed. The Court fixed this matter for ruling on 8th March 2024.
11. The 2nd Administrator/Applicant seeks the exercise by this Court of a discretionary remedy. Courts exercise discretionary remedies on the basis of sound principles and not whimsically. Whoever seeks the exercise of discretion in his favour must come to Court with clean hands; that is, his conduct is a necessary consideration.
12. The 2nd Administrator/Applicant was given a month to buy out his siblings. For unknown reasons, she was unable to comply. She was given prayer 1 of her application on condition that she deposited Kes.4,026,244.45 in Court within a set period. Yet again, she was not able to do so. Further, her advocate failed to file Written Submissions. I refer to Mr Yose as her advocate as no application to cease acting was ever filed to the best of my knowledge.
13. I agree with the decision of the Court in the case of Benjoh Amalgamated Limited & Another. Kenya Commercial Bank Ltd [2014]eKLR where it was held that:-
“A claimant in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the stature or limitation, equity aids the vigilant not the indolent” or “delay defeats equity”. A Court of equity refuses its aid to stale demands, where the claimant has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his unconscionable delay (laches).”
14. The 2nd Administrator/Applicant has been indolent. She had 1 month to comply with this Court's previous orders of 17 October 2023. Upon filing her application to be given more time, she should have acted with alacrity to prosecute it. This is an old matter, which was filed in 1991, 34 years ago. A person born in 1991 most probably has a family. It is these kinds of delays that give the Judiciary a bad name, notwithstanding the fact that they are caused by litigants themselves.
15. Litigation must come to an end. Allowing the instant application when the applicant is not keen to prosecute is not in the interest of justice.
16. The orders that therefore commend themselves are as follows:-
1. The Chamber Summons application dated 15th November 2023 is dismissed with no orders as to costs;
2. Pursuant to paragraph 30(2) of my ruling dated 17th October 2023, the Respondent and or other beneficiaries shall have 30 days from the date hereof to buy out the 2nd Administrator/Applicant. In the event that they fail to do so, the order given in paragraph 30(3) will be enforced.
17. This being a family matter, each party will bear her or his own costs.
18. Orders accordingly.
Dated and signed this 8th day of March 2024 at Mombasa.
2. This Court issued a ruling on 17th October 2023 vide which it ordered as follows:-
“1. I order that the deceased’s estate, that is, the 1/6 share in Title No. Mombasa/Block XVII/66 be sold. The applicant shall have the first right to buy the same within 30 days of the date of this ruling. When calculating the purchase price, her share, as determined by the Chief Kadhi, shall be considered;
2. In the event that she is unable or unwilling to buy out her co-beneficiaries, the Respondent and or other beneficiaries shall have the right to buy out the Applicant’s share at the best possible open market value, within 30 days of the date the Applicant was deemed as unable or unwilling to exercise her right to purchase the same; and
3.If the Applicant and the Respondent cannot exercise their respective rights under Orders 1 and 2 above, then 1/6 share of Title No. Mombasa/Block XVII/66 shall be sold at the best possible open market value, and the proceeds therefrom distributed to the beneficiaries of the estate of the deceased in accordance with the advice of the Chief Kadhi dated 29th May 2017.”
3. Pursuant to the ruling, the 2nd Administrator/Applicant had until 17th November 2023 to buy out her co-beneficiaries so that she would be the sole owner of 1/6 share of Title No. Mombasa/Block XVII/66.
4. A day before the said expiry, she filed the instant Chamber Summons application seeking the following orders:-
1. This honourable Court be pleased to issue a temporary injunction stopping the Respondent or any other beneficiary from selling or buying the estate herein (1/6 share of Title No Mombasa/Block XVII/66) until the application is heard and determined;
2. This honourable Court be pleased to extend the time within which the Applicant can buy out the shares of the rest of the beneficiaries from the estate by 60 more days;
3. This honourable Court be pleased to order that distribution of the estate be effected by the two administrators by opening a joint account operated by both of them where the proceeds of the estate will be deposited for distribution;
4. The court do issue summons to all the beneficiaries herein to avail themselves in Court for the distribution of the estate; and
5. Costs of this application be borne by the estate.”
5. The 2nd Administrator/Applicant prayed, stating that she needed more time to secure the money to buy the estate, whose value she reckoned as Kes.6,039,366.68. At the time of filing the application, she stated that she had 2/3 of the said price.
6. The application is opposed. The 1st Administrator/Respondent filed a Replying Affidavit sworn on 29th November 2023, vide which he averred that the time within which the 2nd Administrator/Applicant could comply with the orders of the Court shouldn’t be extended.
7. The application came up for hearing on 21st November, 2023. On the said date, I granted the 2nd Administrator/Applicant’s prayer 1 of her application, on the condition that she would deposit Kes.4,026,244.45 in Court on or before 5 pm on 22nd November 2023. I gave the 1st Administrator/Respondent leave to file a Replying Affidavit within 7 days and directed that the matter would proceed by way of Written Submissions. I listed the matter for highlighting of the written submissions on 14th December 2004. The 2nd Administrator/Respondent never complied with my orders and failed to deposit the said amount in court.
8. On 14th December 2023, there was no appearance for the 2nd Administrator/Applicant. Although Ms. Iman, learned counsel for the 1st Administrator/Respondent, was ready to proceed, Mr. Yose, learned counsel for the 2nd Administrator/Applicant, indicated that he had no instructions. I therefore adjourned the matter to 15th January 2024.
9. I ordered Mr. Yose to file a formal application to cease acting. Mr Yose indicated to the Court on 25th January 2024 that he filed an application dated 20th January 2024 seeking to cease acting for the 2nd Administrator/Applicant. The Court has not, however, seen the said application.
10. On 2nd February 2024, this matter came up for highlighting of the Written Submissions; only the Written Submissions of the 1st Administrator/Respondent had been filed. The Court fixed this matter for ruling on 8th March 2024.
11. The 2nd Administrator/Applicant seeks the exercise by this Court of a discretionary remedy. Courts exercise discretionary remedies on the basis of sound principles and not whimsically. Whoever seeks the exercise of discretion in his favour must come to Court with clean hands; that is, his conduct is a necessary consideration.
12. The 2nd Administrator/Applicant was given a month to buy out his siblings. For unknown reasons, she was unable to comply. She was given prayer 1 of her application on condition that she deposited Kes.4,026,244.45 in Court within a set period. Yet again, she was not able to do so. Further, her advocate failed to file Written Submissions. I refer to Mr Yose as her advocate as no application to cease acting was ever filed to the best of my knowledge.
13. I agree with the decision of the Court in the case of Benjoh Amalgamated Limited & Another. Kenya Commercial Bank Ltd [2014]eKLR where it was held that:-
“A claimant in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the stature or limitation, equity aids the vigilant not the indolent” or “delay defeats equity”. A Court of equity refuses its aid to stale demands, where the claimant has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his unconscionable delay (laches).”
14. The 2nd Administrator/Applicant has been indolent. She had 1 month to comply with this Court's previous orders of 17 October 2023. Upon filing her application to be given more time, she should have acted with alacrity to prosecute it. This is an old matter, which was filed in 1991, 34 years ago. A person born in 1991 most probably has a family. It is these kinds of delays that give the Judiciary a bad name, notwithstanding the fact that they are caused by litigants themselves.
15. Litigation must come to an end. Allowing the instant application when the applicant is not keen to prosecute is not in the interest of justice.
16. The orders that therefore commend themselves are as follows:-
1. The Chamber Summons application dated 15th November 2023 is dismissed with no orders as to costs;
2. Pursuant to paragraph 30(2) of my ruling dated 17th October 2023, the Respondent and or other beneficiaries shall have 30 days from the date hereof to buy out the 2nd Administrator/Applicant. In the event that they fail to do so, the order given in paragraph 30(3) will be enforced.
17. This being a family matter, each party will bear her or his own costs.
18. Orders accordingly.
Dated and signed this 8th day of March 2024 at Mombasa.