Maina & another v Too & another [2022] KEHC 3139 (KLR)

Maina & another v Too & another (Succession Cause 350 of 2015) [2022] KEHC 3139 (KLR) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3139 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 350 of 2015

EKO Ogola, J

June 20, 2022

IN THE MATTER OF THE ESTATE OF SAWE MAINA DECEASED

Between

Isaac Kipkorir Maina

1st Applicant

Paul Kosgei Maina

2nd Applicant

and

Esther Jepsongok Too

1st Respondent

Susan Jeptepkeny Maina

2nd Respondent

Ruling

1. Before me for determination are summons dated 16th December, 2021 in which the Applicants seek the following orders;1. Spent.2. That in the interim there be stay of proceedings in this matter pending the hearing and determination of the application interpartes.3. That in the interim there be stay of proceedings in this matter pending hearing and determination of the intended appeal.

2. The application is premised on the grounds set out therein and is further supported by the affidavit of Isaac Kipkorir Maina sworn on 16th December, 2021.

Applicants’ Case 3. The Applicants’ case is that on 6/12/2021 this Court rendered its ruling dismissing the Applicants’ application dated 5/8/2021, in which the Applicants had sought to review the orders that were issued on 5/12/2019. The Applicants had also sought leave to call witnesses and have the matter heard viva voce. The applicants aver that being dissatisfied by the said ruling, they have since initiated appeal proceedings and are apprehensive that unless orders of stay are granted the court may proceed with the distribution of the estate whose effect would render the appeal nugatory if the appeal was to succeed.

4. The Applicants aver that they have an arguable appeal and that the learned judge erred in law and in fact in finding that the Applicants were represented by the firm of Omboto & Company Advocates while in essence the said firm had only entered appearance for Esther Jepsongok Too.

5. The Applicants further contend that the learned judge also erred in law and in fact in failing to afford the Applicants an opportunity to tender viva voce evidence in support of their case, breaching their right to a fair hearing.

6. The Applicants aver that the application is made without undue delay and that the Respondents will not suffer any prejudice if the orders sought are granted.

1st Respondent’s case 7. The application was opposed by Esther Jepsongok Too, the 1st Respondent who filed her Replying Affidavit on 3/3/2022 in which she deposed that the Applicants’ application is frivolous, bad in law, not premised on any law, incurably defective and is an abuse of the court process and hence should be dismissed.

8. The 1st Respondent’s case is that vide the application dated 5/8/2021, the Applicants sought to review, set aside and or vary a consent order entered into by the parties on the understanding that Esther Jepsongok, Gilbert Kiplimo Maina and Susan Jeptepkeny be appointed as administrators of the estate. That on 6/12/2021 this Court issued a ruling dismissing the said application.

9. The 1st Respondent averred that the Applicant’s application is incompetent and misconceived as the impugned orders are not appealable as of right under Order 43 Rule (1) of the Civil Procedure Rules. According to the 1st Respondent, the Applicants having opted to apply for review of the orders, cannot now come back and seek to appeal the said decision.

10. The 1st Respondent argues that pursuant to the provisions of order 43 Rule 2 and 3 of the Civil Procedure Rules (CPR), the Applicants were required to seek leave to appeal against the orders made by this Court.

11. The 1st Respondent averred that the impugned orders arose out of a consent order and that an appeal is not tenable pursuant to the provisions of Section 67 (2) of the Civil Procedure Act. That the ruling intended to be appealed against arose out of a review and that order 45 of the CPR does not allow for an appeal on review.

12. The 1st Respondent further averred that this instant application fails to meet the threshold to warrant the issuance stay orders as provided under Order 42 Rule the Civil Procedure Rules, 2010, and that the applicants have not demonstrated the loss they will suffer if the orders are not granted.

13. The 1st Respondent averred that the matter was in its final stages as the parties herein had already filed submissions on the mode of distribution and were awaiting judgment. According to the 1st Respondent the present application is only meant to derail the process and to satisfy the selfish interests of the Applicants which should not be allowed.

14. The 1st Respondent urged court to dismiss the application and allow the main cause to proceed to conclusion.

The 2nd Respondent’s Case 15. Susan Jeptepkeny Maina, 2nd Respondent filed a Notice of Preliminary Objection dated 11th January, 2022 together with a replying affidavit sworn on the same date. In the Notice of Preliminary Objection, the 2nd Respondent raised the following grounds, that;i.This issue arose out of a consent and that an appeal is not allowed under Section 67 (2) of the Civil Procedure Actii.The ruling intended to be appealed against arose out of a review and that order 45 of the Civil Procedure Rules does not allow an appeal on review.

16. In the affidavit the 2nd respondent stated that the subject matter of the dispute is their late father’s estate which they have all been occupying and using. The 2nd Respondent averred that the Applicants herein do not have any advantage over the rest of the beneficiaries as the dispute involves LR No. 8515/5 in which her family interest is 224 acres.

17. The 2nd Respondent’s case is that there is no room for appeal on a consent and on review as per order 45 of the Civil Procedure Rules and therefore she is opposed to the issuance of an order of stay of proceedings as the Applicants merely seek to continue wasting the estate. The 2nd respondent maintains that the Applicants interests are fully catered for and that the administrators have not in any way wasted the said estate. She further maintains that parties were heard and viva voce evidence was tendered, and so the matter should proceed to judgment as parties have already filed their respective submissions. There is no evidence to show how the interests of the Respondents in the said estate will be catered for pending the intended appeal.

18. The application was canvassed by way of written submissions. All parties filed their submissions.

Determination 19. I have considered the application, the affidavits both in support of and in opposition to the application, the notice of preliminary objection raised and the submissions filed by both parties.

20. Before I delve into the merits of this application, it is only proper that I first address the Notice of Preliminary Objection dated 11th January, 2022 raised by the 2nd Respondent herein.

21. The law as to Preliminary Objections is well settled. In the celebrated case of Mukisa Biscuits Manufacturing Company Ltd v West End Distributors the Eastern Court of Appeal held at page 701 that:-“A Preliminary Objection is in the nature of what used to be a demurrer. It raised a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to ascertained or if what is sought is the exercise of judicial discretion.”At page 700 the court had stated that:-“..... So far as I am aware a Preliminary Objection consists of a point of law which has been pleaded at which ............. by clear implication out of the pleadings and which if argued as a preliminary point may dispose off the suit.” (Emphasis supplied)

22. I have looked at the two points of law raised by the 2nd Respondent’s preliminary objection and the same touch on the competence of the Applicants’ application in view of Section 67 (2) of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. (clearly those are pure points of law and there are no facts to be ascertained. A perusal of the record will suffice.

23. I have looked at the record. I have not seen any facts that are contested. It is a fact that the parties herein on 5th February, 2019 entered into a consent that Esther Jepsongok Too, Gilbert Kiplimo Maina and Susan Jeptenkeny Maina be appointed administrators of the estate of Sawe Maina (deceased). By summons dated 5th August, 2021 the Applicants herein sought to review, set aside and or vary the consent order dated 5th February, 2019. This Court vide its ruling dated 5th August, 2021 dismissed the said application for lack of merit.

24. Section 67 (2) of the Civil Procedure Act provides that no appeal shall lie from a decree passed by court with consent of the parties. It is not in dispute that on 5th February, 2019 parties herein entered into a consent that that Esther Jepsongok Too, Gilbert Kiplimo Maina and Susan Jeptenkeny Maina be appointed administrators of the estate of Sawe Maina (deceased). The Applicants herein cannot now seek to appeal against the order that was made on 5th February, 2019 having consented to the same.

25. Order 45, provides for application for review of decree or order.(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

26. Order 45 of the Civil Procedure Rules deals with applications for review. The substantive law on review is found under Section 80 of the Civil Procedure Act. In my view a proper reading of Section 80 of the Act and Order 45 Rules 1 and 2 makes it abundantly clear that a party cannot apply for review and appeal from the same decree or order. In the present case, the Applicants opted to seek for review of the orders made on 5th February, 2019 and cannot therefore seek to appeal this Court’s ruling that was delivered on 6th December, 2021. The Applicants in filing the application dated 5th August 2021, invoked the provisions of the law and the procedure thereto and the court rendered itself on the basis of the law and the evidence. Litigation must come to an end. This instant application in my view is an abuse of court process and must fail.

27. In view of the foregoing, the Notice of Preliminary Objection dated 11th January, 2022 is hereby upheld and the Applicant’s application dated 16th December, 2021 is struck out with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 20TH OF JUNE 2022. E. K. OGOLAJUDGE