CAROLINE MAKOKHA ATONYA vs BARNABAS ATUMA GICHANA [2004] KEHC 2320 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 2654 OF 2000

CAROLINE MAKOKHA ATONYA………………....……………....1ST APPLICANT

OBED BUCHICHI AMBITS………………………..……………….2ND APPLICANT

versus

BARNABAS ATUMA GICHANA……………….………………1ST RESPONDENT

VERONICA KATUMBI………………………………………….2ND RESPONDENT

RULING

The 1st petitioner in this cause has applied for an order of stay of execution of the order confirming the grant of Letters of Administration of the deceased estate or the distribution of the funds or any assets pending the filing and determination of an intended appeal by the 1st applicant.

The application which is dated 16th March 2004 is supported by an affidavit of the 1st petitioner sworn on 17th March 2004. The application was brought by way of Chamber Summons and sought also for orders that M/s Khamati Minishi & Co. Advocates be allowed to represent the 1st petitioner in place of Khamati Akaabi & Co. Advocates.

The application was brought under certificate of urgency and an interim exparte order of stay of execution pending the inter parties hearing was granted, as well as leave for M/s Khamati Minish & Co. Advocate to act for the applicant in place of Khamati & Akhaabi Advocates. The order that the 1st petitioner seeks to appeal against was made on 31st January 2003 and the applicant filed a Notice of Appeal on 4th February 2003. The 1st petitioner argued that she has a reasonable case with a probability of success in the Court of Appeal.

The estate of the deceased which comprises mainly of money from his former employers should be preserved. In the alternative the court should access the money due to the applicant from the estate and retain a portion which the 1st petitioner can get hold of should her Appeal be successful.

Counsel also submitted that under rule 49 of the P & A Rules, the prescribed format for filing the application that is not specifically provided for is a Chamber Summons. He therefore urged the court to disregard undue technicalities as regards procedures and forms while taking into considerations the provisions of the Judicature Act. Cap 8 of the Laws of Kenya.

This application was opposed by the objectors/respondent. They based their arguments on the replying affidavit of Veronica Katumbi Mungei sworn on 26th March 2004. The matters deposed to can be summarized as follows:

1) The 1st petitioner is guilty of lashes. The application has been brought after an inordinate and unexplained delay of more than 1 year.

2) The applicant had withdrawn funds from the deceased estate and she is facing charges of Criminal nature relating to the fraud.

3) The application for stay of execution is defective and an abuse of the court process.

I have given due consideration to the above submissions. Under Rule 63 of the P & A Rules, the Section of the Civil Procedure that are adopted to be applied in the Law of Succession are provided for but Order 41 of the Civil Procedure Rules is not provisions of the Civil Procedure that is envisaged. Accordingly the application that is brought under rule 49 of the P & A Rules by way of Chamber Summons does not offend the rules. However the application also meets other technical problems on whether an appeal can be pursued from the decision of the High Court in view of the provisions of Section 50 of the Law of Succession Act which provides:

“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.”

The above provisions explains why the provision of the Civil Procedure that deal with appeals have not been imported in the Law of Succession Cap 160. The applicant has already filed a Notice of Appeal. I wish to not dwell on whether the Notice of Appeal or not is properly filed. I have also given further consideration to the provisions of Order 41, (2) of the Civil Procedure Rules and the circumstances of this case and the principals laid down on granting stay of execution. There are allegations that the applicant has withdrawn money from the deceased account. It has taken her so long to apply for stay of execution and to file the appeal. In the event that she may succeed in the appeal, the sum withdrawn from the deceased estate could form part of her entitlement, if the sum was part of the deceased estate. There is also the sum of about Kshs.800,000/= that was deposited in a fixed deposit account for the minors until they attain the age of majority which sum could also remain available for redistribution should the petitioner’s appeal be successful. In this regard I am not satisfied that substantial loss may result to the applicant unless the order of stay is made. The upshot of the above, is that the 1st petitioner’s application for stay should fail with costs to the respondent. The applicant’s advocate M/s Khamati Minishi & Co. are granted leave to represent the appellant.

Ruling read and signed on 23rd April 2004.

MARTHA KOOME

JUDGE