In re Estate of Kiumbia M’mukira alias Kiumba M’riria (Deceased) [2022] KEHC 1589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

SUCCESSION CAUSE NO. 512 OF 2013

IN THE MATTER OF THE ESTATE OF KIUMBIA M’MUKIRA alias KIUMBA M’RIRIA (DECEASED)

AND

IN THE MATTER OF PROTEST

BETWEEN

JOSEPH KINOTI M’MUKIRA...............................................................APPLICANT

AND

ROSALIA NKATHA MUKIIRA...............................PETITIONER/RESPONDENT

RULING

Introduction

1)   By an order dated 04th March, 2021, this court directed that deceased’s estate comprising of LR.NO. NTHIMBIRI/KIUTHA/46 shall be distributed into seven (7) equal shares to the following:

i.   1/7 to Joseph Kinoti

ii.  1/7 to Samson Kiriinya

iii. 1/7 to Rosalia Nkatha

iv. 1/7 to Gladys Nkirote

v.  1/7 to Hellen Mwari Mwirigi

vi. 1/7 to Daniel Kimaita and Bernard Muthuri in equal shares

vii.  1/7 to Dennis Mwiti and Nancy Gatwiri in equal shares

2)   Aggrieved by the foregoing order on distribution, the Applicant has moved the court by way of a chamber summons dated 03rd December, 2021 and filed on    08th December, 2021 seeking the orders THAT:

1)   ………spent

2)   ………spent

3)   The Applicant be granted leave to appeal the ruling dated 04. 03. 2021 distributing the estate of the deceased equally to his children

4)   Costs be provided for

3)   The summons is based on the ground among that:

1)   He was removed from being an administrator and he is aggrieved

2)   The deceased had a will

3)   He was not heard

4)   Applicant intends to appeal this court’s ruling dated04th March, 2021

5)   Application has been brought without inordinate delay

4)  The motion is supported by an affidavit sworn by Applicant’s on 03. 12. 2021 in which he reiterates the grounds on the face of the application.

5)   The Respondent opposed the summons by her replying affidavit sworn on  07. 03. 2022 in which she faults the applicant of inordinate delay having brought this application one year since the impugned ruling was delivered.  It is further averred that Applicant has not demonstrated that his intended appeal will be rendered nugatory if the court order on distribution is executed.

Analysis and Determination

6)  I have considered the summons in the light of the affidavit on record and annexures thereto and submissions for both parties and the issue for determination as whether leave to appeal ought to be granted

7)   I have considered the holding by the Court of Appeal in Rhoda Wairimu Karanja & Another V Mary Wangui Karanja & Another [2014] eKLR where it upheld the decision of the High Court that the right to appeal to the Court of Appeal, in succession matters, lies with leave. The same court in the case of Mugahv Kunga (1988) KLR stated that the practice of the Court of Appeal in the case of land which is a sensitive issue is that the parties should be allowed to come to the court to have the issues involved in their dispute determined by a court of last resort.

8)   Article 50 (1) of the Constitution underscores the right to be heard and provides that:

(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

9)   As this is a succession matter involving land, I am persuaded that the interest of justice would be better served if the Applicant is granted leave to appeal and the same is hence granted notwithstanding the inordinate delay in bringing this application.

10) From the foregoing analysis therefore, the court makes the following orders:

a)Applicant is granted leave to appeal the ruling of04th March, 2021

b)In order to preserve the subject matter, it is hereby ordered thatthe beneficiaries shall upon distribution of the estatetake possessionbut shallneitheroffer for sale, sell, dispose off, transfer, charge or deal with their respective shares in any adverse manner until the intended appeal is heard and determined or until any or further orders of the court.

c)   Costs shall abide the outcome of the appeal.

DATED AT MERU THIS 10TH DAY OF MARCH 2022

T. W. CHERERE

JUDGE

APPEARANCES

COURT ASSISTANT - MORRIS KINOTI

FOR APPLICANT - MR. KIMATHI FOR L.KIMATHI KIARA & CO. ADVOCATES

FOR RESPONDENT - MR. RIUNGU FOR A.G.RIUNGU & CO. ADVOCATES