1. The defendants filed a Notice of Motion application dated 29th February, 2024 pursuant to the provisions of Order 51 Rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A & 63 (c) & (e) of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Article 159(2) of the Constitution and all enabling provisions of the law, seeking orders that the proceedings in this suit be stayed pending the hearing and final determination of the Summons dated 14th February, 2024 filed in Nairobi High Court Succession Cause No. 43 of 2004, seeking revocation of the Grant of Probate issued to the plaintiff in respect of the Estate of the late Shamsudeen Nimji.
2. The application is premised on the grounds on the face of the Motion, and is supported by an affidavit sworn on the same day by Sobakchand Shah, the 2nd defendant’s Director. He averred that the plaintiff filed a suit in her capacity as the Executrix and Personal Representative of the Estate of the late Shamsudeen Nimji, based on a Grant of Probate issued on 4th February, 2020 in Nairobi High Court Succession Cause No. 43 of 2004. He stated that the defendants have challenged the validity of the plaintiff\'s Grant of Probate, on the basis that she does not have the requisite locus standi to bring the suit.
3. He deposed that on 28th February, 2024, he became aware that the plaintiff\'s brother had filed Summons in Nairobi High Court Succession Cause No. 43 of 2004, seeking to revoke the plaintiff’s Grant of Probate. He asserted that if the plaintiff’s Grant of Probate is revoked, it will directly affect the plaintiff\'s ability to maintain the suit and her locus standi in this suit, thus the need to stay further proceedings in this suit until the determination of the Summons for revocation of Grant filed in the Succession Court. He stated that it would be unjust and unfair to the defendants if the hearing of this suit is allowed to proceed before the validity of the plaintiff’s Grant of Probate is determined.
4. In opposition to the application herein, the plaintiff filed Grounds of Opposition dated 1st March, 2024, raising the following issues –
i) This Honourable Court lacks jurisdiction to entertain any issue regarding the Grant of Probate as such jurisdiction vests solely in the Family Division;
ii) The application is an attempt to introduce an issue that is currently before the Family Division of the High Court;
iii) By virtue of Section 80(1) of the Law of Succession Act, the actions of the plaintiff as Executrix are valid from the date of the Grant of Probate;
iv) The plaintiff’s Grant is valid and has not been revoked;
v) Under the law, the plaintiff’s duties as Executrix cannot be held in abeyance until a challenge to her appointment is determined;
vi) Further, a stay of proceedings is a serious and fundamental interruption on the right of a party to conduct their (sic) litigation towards trial on the basis of the substantive merits of their (sic) case. Accordingly, it should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue;
vii) The application is an abuse of process and is aimed at delaying the hearing of the plaintiff’s case;
viii) The application will prevent the just and expeditious disposal of the plaintiff’s suit; and
ix) Accordingly, the defendants’ application should be dismissed with costs.
5. The instant application was canvassed by way of written submissions. The defendants’ submissions were filed on 18th March, 2024 and 23rd April, 2024 by the law firm of Desai, Sarvia, & Pallan Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kaplan & Stratton Advocates on 9th April, 2024.
6. Mr. Sarvia, learned Counsel for the defendants relied on the Court of Appeal case of Eastern Africa decisions in Jadva Karsan v Harnam Singh [1953] 20 EACA 74 and Harman Singh & others v Mistri [1971] EA 122. He also relied on the case of Tatu City Limited & another v Taijbee Bhalla Advocates LLP [2022] eKLR. He submitted that this Court’s power to order a stay of proceedings is discretionary and is only to be exercised where there are sufficient reasons to do so to meet the ends of justice. He further submitted that the plaintiff has brought this suit in her capacity as the Executrix and Personal Representative of the Estate of the late Shamsudeen Nimji. He stated that the validity of the alleged Grant of Representation is being challenged by the plaintiff’s brother in Nairobi High Court Succession Cause No. 43 of 2004, where he has filed Summons seeking revocation of the said Grant.
7. He argued that if the said Summons are allowed, and the plaintiff’s Grant of Representation is revoked, the plaintiff’s locus standi to file this suit will cease to exist, thus rendering this suit incompetent, which means that determination of the Summons for revocation of the plaintiff’s Grant of Representation filed in the Succession Court will have a fundamental impact on this suit. Counsel cited the Court of Appeal case of Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 others [2009] eKLR, and stated that proceeding with the hearing of this case before the determination of the Summons for revocation of the plaintiff’s Grant will amount to a total waste of precious judicial time and resources, especially if the said Summons end up being successful. Counsel submitted that it is in the interest of justice for the orders sought in the instant application to be granted. He stated that the instant application has been filed timeously.
8. Mr. Kahura, learned Counsel for the plaintiff relied on the decisions made in Kenya Wildlife Service v James Mutembei [2019] eKLR and BM Logistics Ltd v Kenya National Bureau of Statistics & another [2013] eKLR, and submitted that the defendants have not met the threshold for being granted an order for stay of proceedings. He cited the case of Osman Tahir Sheikh Said & another (suing as the Executors of the will of Tahir Sheikh Said Ahmed) v Nomad Energy Limited; Sabir Tahir Sheikh Said & 5 others (Interested Parties) [2019] eKLR, and stated that the fact that the plaintiff’s Executorship is being challenged does not affect her locus standi to institute this suit in any way. He asserted that even if the plaintiff’s Grant is revoked, this suit will still proceed with the new Executor in place of, or together with the plaintiff, because the plaintiff’s brother has sought to be appointed as a joint Administrator of the Estate of the late Shamsudeen Nimji.
9. In a rejoinder, Mr. Sarvia cited the case of Shelmith Wacuka Ndumu (suing as the Legal Representative of Mwaura Mbira) v Wanjira Mwaura & 10 others [2016] eKLR, and stated that where a grant is revoked and a party is found to have no locus standi yet they are still heard, it would amount to an abuse of the Court process at the detriment and prejudice of the other parties in the suit. He urged that it would be prudent to stay these proceedings pending determination of the validity of the plaintiff’s Grant of Representation to prevent a miscarriage of justice. Counsel relied on the case of Kipngetich Kalya Kones (Suing as the Administrator of the Estate of Kipkalya Kiprono Kones (Deceased) v Wilson Kiplangat Kones [2021] eKLR, and further urged that if the plaintiff is found not to have locus standi to file this suit, the suit shall be rendered incompetent.
ANALYSIS AND DETERMINATION.
10. Upon consideration of the application herein, the affidavits filed in support thereof, the Grounds of Opposition relied on by the plaintiff, as well as the written submissions by Counsel for the parties, the issue that arises for determination is whether stay of proceedings should issue.
11. The Court in the case of Kikambala Housing Estate Limited v Akash Devani & 10 others [2020] eKLR, when dismissing an application for stay of proceedings stated as hereunder -
An order for stay of proceedings should not be granted as of course merely because it has been sought. The court must appreciate the constitutional dictate for the expeditious disposal of the case and only stay proceedings in very compelling cases. This is what I get from the author of Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, on the threshold for stay of proceedings;
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.
It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case. (Emphasis added).
12. The plaintiff filed this suit on behalf of the Estate of the late Shamsudeen Nimji, in her capacity as the Executrix and Personal Representative of the said Estate, based on a Grant of Probate issued on 4th February, 2020 in Nairobi High Court Succession Cause No. 43 of 2004. The defendants contend that they have since learnt that the plaintiff’s brother has filed Summons for revocation of the said Grant in the Succession Court, which application is pending hearing and determination. They asserted that if the said application is allowed and the plaintiff’s Grant is revoked, then she will no longer have the requisite locus standi to institute and/or proceed with this suit, and the suit herein will be rendered incompetent.
13. The plaintiff on the other hand contended that the defendants have not made out a case to warrant this Court to exercise its discretion and grant the defendants an order for stay of further proceedings in this suit. This is because even if the plaintiff’s Grant is revoked, this suit will still proceed with the new Executor in place of, or together with the plaintiff, considering that the plaintiff’s brother seeks to be appointed as a joint Administrator of the Estate of the late Shamsudeen Nimji.
14. Locus standi was defined by the Court of Appeal in the case of Njau v Council of Nairobi, KLR [1983] 625 as hereunder –
Locus Standi literally means a place of standing and refers to the right to appear or be heard in Court or other proceedings and to say that a person has no locus means that he has no right to appear or be heard in such and such proceedings.
15. The plaintiff derives her locus standi to institute and proceed with this suit on behalf of the Estate of the late Shamsudeen Nimji from the Grant of Probate issued to her on 4th February, 2020 by the Court in Nairobi High Court Succession Cause No. 43 of 2004. I note that in as much as the plaintiff contends that her brother seeks to be appointed as a joint Administrator of the Estate of the late Shamsudeen Nimji together with her, no evidence has been tendered in support of the said assertion. The defendants have produced a copy of the Summons for revocation of Grant challenging the plaintiff’s Grant of Probate filed in the Court in Nairobi High Court Succession Cause No. 43 of 2004. Having perused the said Summons, I note that the orders sought therein are for revocation and/or annulment of the Grant of Probate made to Laila Nimji, the plaintiff herein on 4th February, 2020. This means that the validity of the plaintiff’s Grant of Probate from which she derives the locus standi to institute and/or proceed with this suit is in question and is up for determination.
16. In the case of Kipngetich Kalya Kones (Suing as the Administrator of the estate of Kipkalya Kiprono Kones (deceased) v Wilson Kiplangat Kones (supra), the Court while striking out a suit for want of locus standi held as follows-
The issue on locus standi is a primary point of law almost similar to that of jurisdiction and since the Plaintiff/Respondent was not an administrator to the deceased’s estate herein, he lacked the capacity to sue on behalf of the deceased’s estate which renders the suit incompetent. Indeed the Court of Appeal authoritatively delivered itself on the issue of locus standi in Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another (1982-99) 1 KAR, Morjaria v Abdalla [1984] KLR 490 and in Trouistik Union International (supra) to the effect that Locus standi is a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue or be sued renders the suit incompetent.
17. In view of the above decision, and the applicable law, in the event that the plaintiff’s Grant of Probate is revoked, the plaintiff will not have the legal capacity to proceed on with this case as against the defendants. That would then lead to the suit herein being rendered incompetent and/or fatally defective.
18. Noting that the defendants only learnt of the existence of the Summons seeking to revoke the plaintiff’s Grant of Probate on 28th February, 2024 and the instant application was filed on 1st March, 2024, this Court is persuaded that the application herein was filed timeously.
19. It is my finding that the defendants have made out a case to warrant this Court to exercise its discretion in their favour and grant them an order for stay of further proceedings in this suit pending the hearing and determination of the Summons seeking revocation of the Grant of Probate issued to the plaintiff in respect of the Estate of the late Shamsudeen Nimji, filed in the Succession Court.
20. In the premise, this Court finds that the instant application is merited. It is hereby allowed as prayed. Costs are awarded to the defendants.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 4th day of October, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Kahura for the plaintiff/respondent
Mrs Zaynab h/b for Mr. Sarvia for the 1st and 2nd defendants/applicants
Ms B. Wokabi - Court Assistant.
2. The application is premised on the grounds on the face of the Motion, and is supported by an affidavit sworn on the same day by Sobakchand Shah, the 2nd defendant’s Director. He averred that the plaintiff filed a suit in her capacity as the Executrix and Personal Representative of the Estate of the late Shamsudeen Nimji, based on a Grant of Probate issued on 4th February, 2020 in Nairobi High Court Succession Cause No. 43 of 2004. He stated that the defendants have challenged the validity of the plaintiff\'s Grant of Probate, on the basis that she does not have the requisite locus standi to bring the suit.
3. He deposed that on 28th February, 2024, he became aware that the plaintiff\'s brother had filed Summons in Nairobi High Court Succession Cause No. 43 of 2004, seeking to revoke the plaintiff’s Grant of Probate. He asserted that if the plaintiff’s Grant of Probate is revoked, it will directly affect the plaintiff\'s ability to maintain the suit and her locus standi in this suit, thus the need to stay further proceedings in this suit until the determination of the Summons for revocation of Grant filed in the Succession Court. He stated that it would be unjust and unfair to the defendants if the hearing of this suit is allowed to proceed before the validity of the plaintiff’s Grant of Probate is determined.
4. In opposition to the application herein, the plaintiff filed Grounds of Opposition dated 1st March, 2024, raising the following issues –
i) This Honourable Court lacks jurisdiction to entertain any issue regarding the Grant of Probate as such jurisdiction vests solely in the Family Division;
ii) The application is an attempt to introduce an issue that is currently before the Family Division of the High Court;
iii) By virtue of Section 80(1) of the Law of Succession Act, the actions of the plaintiff as Executrix are valid from the date of the Grant of Probate;
iv) The plaintiff’s Grant is valid and has not been revoked;
v) Under the law, the plaintiff’s duties as Executrix cannot be held in abeyance until a challenge to her appointment is determined;
vi) Further, a stay of proceedings is a serious and fundamental interruption on the right of a party to conduct their (sic) litigation towards trial on the basis of the substantive merits of their (sic) case. Accordingly, it should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue;
vii) The application is an abuse of process and is aimed at delaying the hearing of the plaintiff’s case;
viii) The application will prevent the just and expeditious disposal of the plaintiff’s suit; and
ix) Accordingly, the defendants’ application should be dismissed with costs.
5. The instant application was canvassed by way of written submissions. The defendants’ submissions were filed on 18th March, 2024 and 23rd April, 2024 by the law firm of Desai, Sarvia, & Pallan Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kaplan & Stratton Advocates on 9th April, 2024.
6. Mr. Sarvia, learned Counsel for the defendants relied on the Court of Appeal case of Eastern Africa decisions in Jadva Karsan v Harnam Singh [1953] 20 EACA 74 and Harman Singh & others v Mistri [1971] EA 122. He also relied on the case of Tatu City Limited & another v Taijbee Bhalla Advocates LLP [2022] eKLR. He submitted that this Court’s power to order a stay of proceedings is discretionary and is only to be exercised where there are sufficient reasons to do so to meet the ends of justice. He further submitted that the plaintiff has brought this suit in her capacity as the Executrix and Personal Representative of the Estate of the late Shamsudeen Nimji. He stated that the validity of the alleged Grant of Representation is being challenged by the plaintiff’s brother in Nairobi High Court Succession Cause No. 43 of 2004, where he has filed Summons seeking revocation of the said Grant.
7. He argued that if the said Summons are allowed, and the plaintiff’s Grant of Representation is revoked, the plaintiff’s locus standi to file this suit will cease to exist, thus rendering this suit incompetent, which means that determination of the Summons for revocation of the plaintiff’s Grant of Representation filed in the Succession Court will have a fundamental impact on this suit. Counsel cited the Court of Appeal case of Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 others [2009] eKLR, and stated that proceeding with the hearing of this case before the determination of the Summons for revocation of the plaintiff’s Grant will amount to a total waste of precious judicial time and resources, especially if the said Summons end up being successful. Counsel submitted that it is in the interest of justice for the orders sought in the instant application to be granted. He stated that the instant application has been filed timeously.
8. Mr. Kahura, learned Counsel for the plaintiff relied on the decisions made in Kenya Wildlife Service v James Mutembei [2019] eKLR and BM Logistics Ltd v Kenya National Bureau of Statistics & another [2013] eKLR, and submitted that the defendants have not met the threshold for being granted an order for stay of proceedings. He cited the case of Osman Tahir Sheikh Said & another (suing as the Executors of the will of Tahir Sheikh Said Ahmed) v Nomad Energy Limited; Sabir Tahir Sheikh Said & 5 others (Interested Parties) [2019] eKLR, and stated that the fact that the plaintiff’s Executorship is being challenged does not affect her locus standi to institute this suit in any way. He asserted that even if the plaintiff’s Grant is revoked, this suit will still proceed with the new Executor in place of, or together with the plaintiff, because the plaintiff’s brother has sought to be appointed as a joint Administrator of the Estate of the late Shamsudeen Nimji.
9. In a rejoinder, Mr. Sarvia cited the case of Shelmith Wacuka Ndumu (suing as the Legal Representative of Mwaura Mbira) v Wanjira Mwaura & 10 others [2016] eKLR, and stated that where a grant is revoked and a party is found to have no locus standi yet they are still heard, it would amount to an abuse of the Court process at the detriment and prejudice of the other parties in the suit. He urged that it would be prudent to stay these proceedings pending determination of the validity of the plaintiff’s Grant of Representation to prevent a miscarriage of justice. Counsel relied on the case of Kipngetich Kalya Kones (Suing as the Administrator of the Estate of Kipkalya Kiprono Kones (Deceased) v Wilson Kiplangat Kones [2021] eKLR, and further urged that if the plaintiff is found not to have locus standi to file this suit, the suit shall be rendered incompetent.
ANALYSIS AND DETERMINATION.
10. Upon consideration of the application herein, the affidavits filed in support thereof, the Grounds of Opposition relied on by the plaintiff, as well as the written submissions by Counsel for the parties, the issue that arises for determination is whether stay of proceedings should issue.
11. The Court in the case of Kikambala Housing Estate Limited v Akash Devani & 10 others [2020] eKLR, when dismissing an application for stay of proceedings stated as hereunder -
An order for stay of proceedings should not be granted as of course merely because it has been sought. The court must appreciate the constitutional dictate for the expeditious disposal of the case and only stay proceedings in very compelling cases. This is what I get from the author of Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, on the threshold for stay of proceedings;
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.
It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case. (Emphasis added).
12. The plaintiff filed this suit on behalf of the Estate of the late Shamsudeen Nimji, in her capacity as the Executrix and Personal Representative of the said Estate, based on a Grant of Probate issued on 4th February, 2020 in Nairobi High Court Succession Cause No. 43 of 2004. The defendants contend that they have since learnt that the plaintiff’s brother has filed Summons for revocation of the said Grant in the Succession Court, which application is pending hearing and determination. They asserted that if the said application is allowed and the plaintiff’s Grant is revoked, then she will no longer have the requisite locus standi to institute and/or proceed with this suit, and the suit herein will be rendered incompetent.
13. The plaintiff on the other hand contended that the defendants have not made out a case to warrant this Court to exercise its discretion and grant the defendants an order for stay of further proceedings in this suit. This is because even if the plaintiff’s Grant is revoked, this suit will still proceed with the new Executor in place of, or together with the plaintiff, considering that the plaintiff’s brother seeks to be appointed as a joint Administrator of the Estate of the late Shamsudeen Nimji.
14. Locus standi was defined by the Court of Appeal in the case of Njau v Council of Nairobi, KLR [1983] 625 as hereunder –
Locus Standi literally means a place of standing and refers to the right to appear or be heard in Court or other proceedings and to say that a person has no locus means that he has no right to appear or be heard in such and such proceedings.
15. The plaintiff derives her locus standi to institute and proceed with this suit on behalf of the Estate of the late Shamsudeen Nimji from the Grant of Probate issued to her on 4th February, 2020 by the Court in Nairobi High Court Succession Cause No. 43 of 2004. I note that in as much as the plaintiff contends that her brother seeks to be appointed as a joint Administrator of the Estate of the late Shamsudeen Nimji together with her, no evidence has been tendered in support of the said assertion. The defendants have produced a copy of the Summons for revocation of Grant challenging the plaintiff’s Grant of Probate filed in the Court in Nairobi High Court Succession Cause No. 43 of 2004. Having perused the said Summons, I note that the orders sought therein are for revocation and/or annulment of the Grant of Probate made to Laila Nimji, the plaintiff herein on 4th February, 2020. This means that the validity of the plaintiff’s Grant of Probate from which she derives the locus standi to institute and/or proceed with this suit is in question and is up for determination.
16. In the case of Kipngetich Kalya Kones (Suing as the Administrator of the estate of Kipkalya Kiprono Kones (deceased) v Wilson Kiplangat Kones (supra), the Court while striking out a suit for want of locus standi held as follows-
The issue on locus standi is a primary point of law almost similar to that of jurisdiction and since the Plaintiff/Respondent was not an administrator to the deceased’s estate herein, he lacked the capacity to sue on behalf of the deceased’s estate which renders the suit incompetent. Indeed the Court of Appeal authoritatively delivered itself on the issue of locus standi in Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another (1982-99) 1 KAR, Morjaria v Abdalla [1984] KLR 490 and in Trouistik Union International (supra) to the effect that Locus standi is a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue or be sued renders the suit incompetent.
17. In view of the above decision, and the applicable law, in the event that the plaintiff’s Grant of Probate is revoked, the plaintiff will not have the legal capacity to proceed on with this case as against the defendants. That would then lead to the suit herein being rendered incompetent and/or fatally defective.
18. Noting that the defendants only learnt of the existence of the Summons seeking to revoke the plaintiff’s Grant of Probate on 28th February, 2024 and the instant application was filed on 1st March, 2024, this Court is persuaded that the application herein was filed timeously.
19. It is my finding that the defendants have made out a case to warrant this Court to exercise its discretion in their favour and grant them an order for stay of further proceedings in this suit pending the hearing and determination of the Summons seeking revocation of the Grant of Probate issued to the plaintiff in respect of the Estate of the late Shamsudeen Nimji, filed in the Succession Court.
20. In the premise, this Court finds that the instant application is merited. It is hereby allowed as prayed. Costs are awarded to the defendants.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 4th day of October, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Kahura for the plaintiff/respondent
Mrs Zaynab h/b for Mr. Sarvia for the 1st and 2nd defendants/applicants
Ms B. Wokabi - Court Assistant.