The Applicant herein Sarah Nangila Dishon filed the present application dated 11.12.2023 seeking the following prayers:
i)Spent
ii)That pending the hearing and determination of the application there be stay of proceedings in Bungoma Chief Magistrate’s Civil Case No. 391 of 2023.
- iii)That the limited grant ad litem issued to the petitioner herein Mercy Chebet on 18.7.2023 in Misc. Succession Cause No. 153 of 2023 for purposes of filing suit in the Chief Magistrate’s Court Bungoma Case No. 391 of 2023 be revoked.
- iv)That pending the hearing and determination of the application the current status of the estate of the deceased including his pension be preserved.
- v)That the costs of the application be borne by the Petitioner /Respondent
- 2.The application is supported by grounds set out on the face thereof plus a supporting affidavit of the applicant sworn on even date. The Applicant’s gravamen is inter alia; that the petitioner is not the legal wife of the deceased; that the alleged marriage agreement and birth certificates of the petitioner’s son are forgeries; that the petitioner never obtained any consent of any beneficiary before filing for limited grant; that the petitioner’s fixed abode is not known contrary to what she has deponed in her affidavit that she is a resident of Naitiri; that the petitioner’s application for limited grant was secretly filed without the knowledge of the applicant and other beneficiaries.
- 3.The application was strenuously opposed by the Respondent who filed a replying affidavit sworn on 20.2.2024 wherein she deposed inter alia; that the deceased had four wives of which she is the fourth; that the allegation of forgeries are false; that she did not need the consent of any beneficiaries while seeking for limited grant of letters for purposes of pushing for her benefits as a widow to the deceased; that the issue of who is to benefit from the pension is now a matter within the pension department ; that no good reasons have been given to warrant this court to interfere with Bungoma CMCC No. 391 of 2023 and Misc. No. 153 of 2023.
- 4.The application was canvassed by way of written submissions. Both parties duly filed and exchanged submissions.
- 5.Vide submissions filed on 3.4.2024, the Applicant submitted that the petitioner obtained the limited grant in contravention of section 76 of the Law of Succession Act as the Petitioner did not use it to preserve the estate but went ahead to use it to advance her interest whereby she pursued the benefits for herself.
It was also submitted that the documents used were all forgeries. It was also submitted that the petitioner is not the legal wife to the deceased but an imposter to the estate. It was finally submitted that the Respondent used the limited grant for purposes other than those intended and which should be revoked. The applicant urged the court to resort to the use of Rule 73 of the Probate and Administration Rules to meet the ends of justice and prevent the abuse of the court process.
6.Vide submissions dated 19.3.2024, learned counsel for the respondent submitted that the Applicant who is a party in Bungoma CMCC No. 39 of 2023 has not given the reasons why those proceedings should be stayed yet she had entered appearance and filed a defence. Learned counsel urged this court to dismiss the application as it is an abuse of the court process.
7.I have considered the application, rival affidavits and submissions. It is not in dispute that there exists two matters involving the parties herein pending before the Chief Magistrate’s Court at Bungoma namely CMCC NO. 391 of 2023 and Misc. Succession Cause No. 153 of 2023 . It is also not in dispute that the said matters are yet to be determined. I find the only issue for determination is whether the application has merit.
8.The Applicant’s application basically seeks a prayer for stay of proceedings in the two lower court matters. Stay of proceedings relates to suspension of regular order of proceedings in a case pending determination of another suit or application or appeal etc. The same is a discretionary remedy and that an applicant is under obligation to convince the court that the order sought is merited in the circumstances since the effect of stay of proceedings is to stall or stop those proceedings until the issue is resolved by a higher court. Hence, an applicant must come to court with clean hands. It is noted that the applicant has not explained as to why she did not deem it fit to ventilate her case before the lower court yet she had already filed her memorandum of appearance and defence. The said lower court is currently seized with both matters and that the applicant has not furnished evidence to the effect that the lower court lacks the requisite jurisdiction to handle the two matters. There is also no evidence that the lower court has adjudicated on the disputed facts and arrived at a decision warranting the applicant or Respondent to lodge appeals to this court. The two matters are yet to be heard and determined by the said court. The Applicant’ s main grouse is that the Respondent does not have locus standi to lodge the suit now pending before the lower court and that the documents filed therein are forgeries. I find the lower court is best placed to determine those issues before any of the parties can rush to this court for redress if aggrieved. It is clear that the motive of the Applicant is to tire and disorient the Respondent and, in the end, avoid appearing before the lower court for the determination of the matters now pending before it. The applicant should proceed and raise issues before the lower court which has jurisdiction to determine them. The conduct of the applicant is suggestive of a party out on a forum shopping which must be discouraged.
The lower court is yet to delve into the matters in dispute and as such i find that he conduct of the Applicant in rushing to this court to be in bad faith and meant to prevent the lower court from adjudicating the dispute now pending before it. It is appropriate for the parties to allow the lower court determine the disputes before they can approach this court for further orders. It is instructive that stay of proceedings should be discouraged and only to be resorted to in clear cases. This is meant to prevent parties form abusing the process and thereby clog the court processes without an end to the litigation. I find the provisions of Rule 73 of the Probate and Administration Rules to be apt in the circumstances as the same is resorted to in order to meet the ends of justice and to prevent abuse of court process. The present application is clearly an abuse of the court process and must be rejected.
9.In view of the foregoing observations, it is my finding that the applicant’s application dated 11.12.2023 lacks merit. The same is dismissed with costs to the Respondent.
Dated and delivered at Bungoma This 12 th day of April,2024.
D Kemei
Judge
In the presence of :-
Sarah Nangila Dishon………………. Applicant
Wekesa for Bwonchiri…………………for Respondent
Kizito…………………………………Court Assistant