Nkabu (Legal Representative of the Estate of Asenath Muthoni Nkaabu - Deceased) v Muthoni (Legal Representative of the Estate of Muthuri Kithuo - Deceased) [2023] KEHC 23321 (KLR)

Nkabu (Legal Representative of the Estate of Asenath Muthoni Nkaabu - Deceased) v Muthoni (Legal Representative of the Estate of Muthuri Kithuo - Deceased) (Civil Appeal E008 of 2023) [2023] KEHC 23321 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23321 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E008 of 2023

TW Cherere, J

October 5, 2023

Between

Ashford Muturi Nkabu (Legal Representative of the Estate of Asenath Muthoni Nkaabu - Deceased)

Applicant

and

Irene Muthoni (Legal Representative of the Estate of Muthuri Kithuo - Deceased)

Respondent

Ruling

1. By notice of motion dated April 13, 2023 filed on April 19, 2023, supported by an affidavit sworn by the Applicant on April 13, 2023, Applicant seeks an order for stay of proceedings in Nkubu PMCC SUCC CAUSE NO 123 OF 2019 pending the hearing and determination of Nkubu PMCC ELC NO 55 OF 2020 on the ground that Nkubu PMCC ELC NO 55 OF 2020 which seeks to determine the claim of the Applicant claim over deceased’s land parcel No Abogeta/L Kithangari/840 which forms part of deceased’s estate in Nkubu PMCC SUCC Cause No 123 of 2019.

2. Respondent opposed the application by his replying affidavit sworn on July 14, 2023 in which she avers that the orders sought is not merited for Applicant’s claim can be determined in Nkubu PMCC SUCC Cause No 123 of 2019.

3. I have considered the application in the light of affidavits on record. The general principle governing the grant of stay of proceedings was elucidated by Ringera J (as he then was), In Re: Global Tours and Travels Ltd NRB HC Winding Up Cause No 43 of 2006 (UR) cited in Kenya Wildlife Service v James Mutembei MRU HCCA No 40 of 2018 [2019] eKLR as follows:'As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.'

4. The issue for determination is whether Applicant has established sufficient cause, to the satisfaction of the court, that it is in the interest of justice to grant the orders sought.

5. Section 86 of the Law of Succession Act (Cap 160 LOK) (1) (d) requires a legal representative to ascertain and pay, out of the estate of the deceased, all his debts. This fact was emphasized by the court in In re Estate of John Mutio Mutua (Deceased) [2022] eKLR where the court stated as follows:'Law of Succession Act allows for protection of the rights of a Creditor and for settlement of debts by a deceased’s estate to bonafide Creditors. Further that the life, health and progression of the Creditors/Applicants have been at a stand still pending the resolution of this dispute.'

6. Both parties have conceded that the matter concerning distribution of the estate Muthuri Kithuo (deceased) is pending in Nkubu PMCC SUCC Cause No 123 of 2019.

7. Applicant has a right to seek protection of his rights in the pending succession cause and any stay of those proceedings where both the Applicant and Respondent will have an opportunity to present their respective claims would in my considered view not be in the interest of justice.

8. From the foregoing, the notice of motion dated April 13, 2023 and filed on April 19, 2023 is dismissed with costs to the Respondent.

DATED IN MERU THIS 05 th DAY OF OCTOBER 2023WAMAE. T.W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant - Mr. Mwendwa for Maitai Rimita & Co AdvocatesFor Respondent - Ms. Kimotho for Gichunge Muthuri & Company Advocates