Sakwa & another v Sakwa & another (Civil Appeal (Application) E369 of 2020) [2023] KECA 679 (KLR) (6 April 2023) (Ruling)
Neutral citation:
[2023] KECA 679 (KLR)
Republic of Kenya
Civil Appeal (Application) E369 of 2020
HM Okwengu, F Sichale & J Mohammed, JJA
April 6, 2023
Between
Charles Temba Sakwa.
1st Applicant
Francis Amulioto Sakwa
2nd Applicant
and
Anne Kabeka Sakwa
1st Respondent
Ruth Amimo Muhaka
2nd Respondent
(Being an application for stay of execution under Rule 5(2) (b) of the Court of Appeal Rules pending the lodging, hearing and determination of the intended appeal from the ruling of the High Court of Kenya (Family Division) at Nairobi (Muchelule, J.) dated 14th October, 2020 in Succession Cause No. 4 of 2007
Succession Cause 4 of 2007
)
Ruling
Background
1.By a Notice of Motion dated November 25, 2020 Charles Temba Sakwa and Francis Amulioto Sakwa, (the applicants) seek orders in the main:a.That this Court do grant the applicants leave to appeal against the ruling/order of the High Court (Muchelule, J - as he then was) dated October 14, 2020;b.That this Court do grant a stay of execution of the impugned ruling/order and any other subsequent orders thereto pending the hearing and determination of the intended appeal;c.That this Court do restrain Anne Kabeka Sakwa (the 1st respondent) or any other administrator of the Estate of Hosea Sakwa Silunya (deceased) from inter-meddling in whatsoever manner with the said Estate pending the hearing and determination of the intended appeal;d.That the costs of the application be provided for. Anne Kabeka Sakwa and Ruth Amimo Muhaka are the 1st and 2nd respondents respectively.
2.A brief background to the application is that the applicants are co- administrators of the Estate of Hosea Sakwa Silunya (deceased) together with Anne Kabeka Sakwa (the 1st respondent) and Ruth Amimo Muhaka (the 2nd respondent). The deceased died intestate on February 1, 2006 and was survived by sixteen (16) adult children. The 16 adult children of the deceased are Warren Omongo Hosea Sakwa, Monica Ngota Silunya, Davis Museka Hosea, Ruth Amino Muhaka (the 2nd respondent), Charles Tembe Sakwa, (the 1st applicant), Lorna Awinja Sakwa, Francis Amulioto Sakwa (the 2nd applicant), Patrick Ndoli Sakwa, Hellen Aluo Sakwa, Simon Silunya Sakwa, Jenifer Anindo Sakwa, Jessy Mutahi Sakwa, Felista Omito Sakwa, Anne Kabera Sakwa (the 1st respondent), Elizabeth Lumwenyi Sakwa and Lilian Kavenyi Kingola.The Grant of Letters of Administration was issued on April 9, 2008 to Warren Omongo Hosea Sakwa, Charles Temba Sakwa, Francis Amulioto Sakwa and Patrick Ndoli Sakwa.
3.Subsequently, the earlier grant was revoked by the court and a fresh grant was issued in the names of the applicants and the 1st and 2nd respondents. The beneficiaries of the Estate are yet to agree on the best mode of distributing the Estate and whilst the respondent and some of the beneficiaries are in favour of partial confirmation of grant and subsequent sale of some of the Estate’s commercial properties, the applicants were in favour of a full confirmation of grant.
4.The 1st respondent herein filed an application in the High Court dated July 24, 2020 brought under Section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules. Ruth Amimo Muhaka joined the application which was supported by all other beneficiaries except the applicants. The application sought that the High Court partially confirms the grant to allow three (3) of the properties in the estate to be sold and the proceeds shared equally between the beneficiaries. The three (3) properties LR No 36/111/10 Garage Eastleigh, Nairobi, LR No 36/VII/346 New Pumwani Estate, Nairobi; and LR No 36/VII/149 New Pumwani Estate, Nairobi. Each beneficiary would therefore get 1/16th share. The 1st respondent deponed in the application that they had found ready buyers for the 3 properties comprising part of the Estate of the deceased.
5.The second prayer in the application was that the applicants be removed as administrators of the estate of the deceased as they were intermeddling in the estate by, inter alia collecting rent and failing to account, laying claim to the properties forming part of the estate; and refusing to participate in the intended sale. The applicants had also refused to surrender the original title documents and log books as ordered by consent on November 26, 2019. The 1st respondent sought that the Deputy Registrar of the High Court be authorized to sign all agreements, mutations, transfers and other instruments relating to the estate of the deceased.
6.The 1st applicant opposed the application and stated that in compliance with the Court Order of November 26, 2019, LR No 36/111/3 was sold to clear the debts and bills; that he opposed any partial confirmation at this stage of the process; that he had surrendered the title documents and log books to his advocates M/s Susan Juma Ngang for onward transmission to the Court; and that he was opposed to the prayer that he be removed as an administrator of the estate of the deceased.
7.The 2nd applicant also opposed the application. He stated that he had surrendered the title documents to properties relating to the estate to his advocates; and that the deceased had put him in possession of LR No 36/VII/346 which he had improved by constructing extra rental and commercial units. He denied that he had intermeddled with any estate property and that he was collecting rent from the suit properties.
8.In its ruling delivered on October 14, 2020, the Court allowed the 1st respondent’s application and ordered partial confirmation of the grant and directed that the three (3) suit properties be sold and the proceeds thereof be shared amongst all the beneficiaries of the estate.
9.The learned Judge stated as follows: -
10.Aggrieved by that decision, the applicants filed the instant application seeking inter alia orders of stay of execution of the ruling and orders of the High Court (Muchelule, J as he then was) dated October 14, 2020 based on the grounds inter alia:a.that the summons dated July 24, 2020 which gave rise to the ruling of October 14, 2020 in the High Court (Muchelule, J, as he then was) did not contain any consent and/or documents executed by all the beneficiaries of the estate giving their consent to the partial confirmation of grant and/or sale of the three suit properties aforesaid;b.that the ruling/order of October 14, 2020 forced and/or coerced the applicants to execute Sale Agreements with respect to the sale of the suit properties within seven (7) days from the date of the said ruling without having been given an opportunity to determine how the purchase price and other terms of the contract were arrived at;c.that the High Court failed to take into consideration that there were no special circumstances that warranted a partial confirmation of Grant or sale of the suit properties;d.that the High Court erred in law and in fact by failing to take into consideration the fact that the Estate of the deceased had just recently disposed of another commercial property, being LR No 36/36/VIII/3 whole purchase price had not been fully paid and which would have been adequate to cater for any contingency faced by the Estate;e.that the High Court failed to take into consideration the interests of tenants occupying the subject properties and who had binding tenancy agreements with the Estate of the deceased;f.that the High Court erred in its decision by failing to note that the Sale Agreements which the applicants had been ordered to execute were anchored or premised on an impugned consent order given on April 30, 2020 which had already been set aside by the Superior Court by consent of the parties earlier on September 28, 2020;g.that there was no evidence adduced by the respondent that the applicants had inter-meddled with the Estate; andh.that Section 82 (b) (ii) of the Law of Succession Act bars the selling of any immovable property of the Estate before confirmation of grant.
11.The 2nd respondent who is the 3rd administrator of the Estate of the deceased opposed the application and filed a replying affidavit. She averred inter alia that the applicants have failed to inform the Court that she and the 1st respondent applied for revocation of the grant after the former administrators: failed to confirm the Estate after six months as provided by law; proceeded to inter-meddle and enrich themselves with proceeds from the Estate to the exclusion of the other beneficiaries; failed to give a true account to the rest of the beneficiaries of the financial state of the Estate of her late father; that her father’s Estate is yet to be distributed; and that the applicants are and have always been the authors of the disagreements since the succession process began.
12.The 2nd respondent further averred that there are special circumstances warranting partial confirmation, the same being that the estate was long overdue for confirmation as the letters of Grant were issued way back in 2007; that the other beneficiaries were not benefiting fully from the Estate since the applicants were inter- meddling with the Estate for their own selfish ends; that some of the Estate debts had not been paid putting the Estate in jeopardy; that most of the beneficiaries depend on the proceeds from the Estate to pay their bills, which proceeds have not been shared equally since the applicants had put themselves in charge of the Estate; that it is also in the best interest to have the Estate partially confirmed since there were interested purchasers who were offering an amount higher than the market price for the properties; and that the applicants herein are in total disagreement with the partial confirmation as they have an interest in the three (3) properties in question.
13.The 2nd respondent further averred that the applicants will not suffer any prejudice if the suit properties are sold as the sale proceeds will be shared in the ratio of 1:16 as proposed in the summons for confirmation filed by the applicants; and that this court is urged to put into consideration the fact that this matter was instituted in 2007 without any positive results; that the filing of the instant application is a delay tactic employed by the applicants to further delay the process to the detriment of the Estate and other beneficiaries who have endured the long delay.
14.It was the 2nd respondent’s further averment that the application has been overtaken by events as the transfer of the suit properties has already been effected. Further, that the sale agreements in respect of the suit properties have already been executed and the transfer process commenced. That the transfers are ongoing save in respect of LR No 36/VII/346 located at California area New Pumwani which is complete. Ms Muhaka attached a copy of a certificate of postal search in respect of LR No 36/VII/346 indicating that the registered proprietor as at December 15, 2020 is Ibgaro Realtors Limited.
15.The 1st respondent opposed the application and filed a replying affidavit. She associated herself with the submissions of the 2nd respondent. She averred inter alia that the applicants vide an application dated March 20, 2020 rooted for a partial confirmation of the grant; that there has previously been a sale of an asset forming part of the estate of the deceased which was sold for Kshs 85 million which amount was shared equally between the 16 beneficiaries; that the application has been overtaken by events as the suit properties have already been sold and ownership changed; and that the applicants will not suffer prejudice as they will receive their share of the sale proceeds.
Submissions by counsel
16.The application was heard by way of submissions with oral highlights. Parties rehashed the issues raised in the application and their respective affidavits.
Determination
17.We have considered the application, the grounds in support thereof, the replying affidavit, the submissions, the authorities cited and the law. The applicants herein seek inter alia leave to appeal against the ruling/order of the High Court and a stay of execution of ruling/order issued by the high Court pending the hearing and determination of the intended appeal. We shall first deal with the applicants’ application for leave to appeal against the ruling/order of the High Court (Muchelule, J - as he then was) dated October 14, 2020.
18.The application before us relates to a succession matter. There is a long line of authorities in which it has been held consistently that no appeal lies to this Court in succession matters except with leave. In Rhoda Wairimu Karanja & Another Vs Mary Wangui Karanja & Another [2014] eKLR, this Court was explicit that:
19.In John Mwita Murimi & 2 Others vs Mwikabe Chacha Mwita & Another [2019] eKLR this Court held:
20.Further, in James Mithia Gichembu vs Lucia Muthoni Silas & Another [2021] eKLR, this Court stated:
21.Rule 41(1) of this Court’s Rules provides that:
22.Accordingly, in succession matters, leave must first be sought from the High Court and only sought from this Court if the High Court declines to grant leave. From the record, the applicants are seeking to appeal against the ruling of the High Court made in exercise of its original jurisdiction in a succession matter. In accordance with the aforecited decisions and Rule 41(1) of the Court Rules, such leave can only be granted by this Court if the applicants satisfies this Court that leave to appeal was sought from the High Court, but declined. The applicants herein have not demonstrated that they sought leave to appeal from the High Court, or that the High Court declined to grant such leave. Accordingly, there is no basis for the applicants to approach this Court for leave to appeal against the Ruling of the High Court dated October 14, 2020. Having so found, it is evident that we have no jurisdiction to deal with the instant application and we must down our tools before interrogating the merits or otherwise of the application before us.
23.The upshot is that the application dated November 25, 2020 is incompetent and is accordingly dismissed. This being a family matter, the order that commends itself to us is that each party bears its own costs.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF APRIL, 2023.HANNAH OKWENGU……………………………..JUDGE OF APPEALF. SICHALE……………………………..JUDGE OF APPEAL JAMILA MOHAMMED……………………………..JUDGE OF APPEAL I certify that this is a true copy of the originalSigned DEPUTY REGISTRAR