Wanjiku Kamau & Wakonyo Mukai v Wambui Mukai & Mutahi Suo [2017] KEHC 1019 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 1227 OF 1999

IN THE MATTER OF THE ESTATE OF JANE MUNJANGI

MUKAI ALAIS MUNJANGI MUKAI (DECEASED)

WANJIKU KAMAU...........................................1ST APPLICANT

WAKONYO MUKAI..........................................2ND APPLICANT

VERSUS

WAMBUI MUKAI.........................................1ST RESPONDENT

MUTAHI SUO............................................2ND RESPONDENT

RULING

1. The applicants by an application dated the 7th of September 2016 brought under Sections 2 & 47 of the Law of Succession Cap 160 Rules 49,67,72 and 73 of the Probate and Administration Rules and Section 7 of the Appellate Jurisdiction Act seek the following orders;

i. That leave be granted to appeal against the Ruling of this Court dated the 19th of August 2016 and all Rulings and Judgments issued therein.

ii. That there be a stay of distribution of the share of the deceased’s estate herein proceeds of sale of L. R No. 7785/433 until the hearing and determination of the application interpartes.

iii. Stay of orders of the distribution and further distribution of the estate the grants as granted herein and as ordered in the said judgment and/or rulings made in the cause.

iv. That there be  a stay of distribution of the proceeds of the share of the deceased’s estate herein sale of L. R No. 7785/433 until the hearing and determination of the application

v. Costs be in the cause

2. The application is supported by the affidavit of Wanjiku Kamau the 1st Applicant. She avers as follows; that she is dissatisfied with the Ruling of the court. That the deceased had no property of her own and any property that devolved to her belonged to her husband. That if the stay is not granted then the estate shall be distributed to the detriment of the beneficiaries of the estate as some of them have been disinherited. That  the  share of proceeds of the deceased herein and her family share of L.R. No. 7785/433 currently held by Wangari Mwanzia and Company  Advocates pursuant to sale of the land be released to  the respondents. The rest of the affidavits gives a background of the applicants’ case.

3. The application was opposed. Wambui Mukai the 1st respondent avers as follows; that she is the sole   beneficiary of the estate of Jane Munjagi Mukai through the grant of probate of oral will issued on the 5th August 1999 and subsequently confirmed on 14th April 2000. That the applicants filed a summons for annulment of the grant of administration on 27th September 2007 and the application was dismissed through a ruling delivered on 10th February 2009 by Justice Rawal. The applicants filed an application seeking a stay of Justice Rawal’s decision pending appeal which was dismissed by Justice Kimaru citing inordinate delay in filing the same since the property had been already been transferred to third parties and as such there was nothing to be stayed. That after 6 years after the ruling of Justice Kimaru the applicants once again moved the court seeking orders through the summons dated the 4th of November 2015 which was once again dismissed through the ruling delivered on the 19th of August 2016 by this court which ruling is the subject of the appeal. It is averred that the application should be dismissed as the applicants have not substantiated any loss that may result unless the orders sought are made. That the application has experienced an overly delay making the appeal nugatory for the reasons that the properties such as L. R. No. 7785/433 against which the orders are sought is no longer part of the estate of the deceased. That the orders being sought are orders in vain as the action they seek to stay has already taken place. That the applicants are have not quoted order 42 of the Civil Procedure Rules and that no law has been quoted by the applicants in their summons for leave to appeal.

4. The application was canvassed by way of oral submissions. The applicants argued that the application has been brought timeously as it was filed 21 days after the ruling but has not been heard for one reason or the other. That the respondents have not shown that the estate has been distributed. That section 83 (g) as read with Section 83 (e) demands that the administrator must give accounts of the estate and in the absence of the accounts the estate remains undistributed. That the court can under Order 42 of the Civil Procedure Rules give a stay of distribution  pending the appeal. The respondent reiterated what is deposed in their affidavit adding that litigation must come to an end.

5. I have considered the affidavits and submissions.  The applicants are seeking 2 prayers, leave to appeal and a stay of distribution of the deceased’s estate. The applicant relied on the case of, In the Estate of Mbiyu Koinange (Deceased), where Justice Musyoka granted a leave to appeal against a judgment of the said court and a stay of the judgment to allow the applicant to move to the Court of Appeal. Section 47 of the Law of Succession Act provides that the High Court shall have jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient. In my view the fact that the applicant has not cited Order 42 of the Civil Procedure Rules in the application is not fatal. The applicant has sought leave to appeal. The ruling the applicant challenges was delivered on the 19th of August 2016. The application was filed on the 8th of September 2016. It was filed timeously there was no inordinate delay.  The applicant has a right to appeal. Leave is granted to the applicant to appeal against the court’s ruling dated the 19th of August 2016.

6. The next issue is whether the court should grant a stay of distribution of the proceeds of the share of the deceased’s estate. It is the respondents’ submission that the property L. R No 7785/433 is no longer part of the estate of the deceased. This has been challenged by the applicants who argue that the respondents have failed to demonstrate that the property is no longer part of the estate. The applicants have not adduced evidence that the estate has not been determined. They argue that the estate will be further distributed to the detriment of the beneficiaries of the estate as some will have been disinherited.  The applicants have not moved the court under Section 83 of the Law of Succession to get to know the status of the subject property. In the applicants affidavit they have given a background on how the deceased inherited the property. Their worry is that if the distribution is done them some of them could be disinherited. This in my view could be substantial loss. Musinga JA in Equity Bank vs. West Link MBO Limited  held that ‘Courts of law exist to administer justice and in so doing they must balance between competing rights and interests of different parties but within the confines of law, to ensure the ends of justice are met.’There is a need to balance the rights of both parties and in my view staying the distribution of the share of the deceased’s estate herein of sale of L.R. no. 7785/433 pending appeal is in order. Costs shall be in the cause. It is so ordered.

Dated signed and delivered this 13th day of  December 2017

R.E.OUGO

JUDGE

In the presence of;

Mr. Mwangale h/b for Mr. Kirui      For the Applicants

Respondents           Absent

Ms. Charity            Court Clerk