Kuko & another v Ali & another; Robinson (Interested Party) (Civil Application E023 of 2023) [2024] KECA 305 (KLR) (22 March 2024) (Ruling)
Neutral citation:
[2024] KECA 305 (KLR)
Republic of Kenya
Civil Application E023 of 2023
FA Ochieng, PM Gachoka & WK Korir, JJA
March 22, 2024
Between
Truphena Tapen Kuko
1st Applicant
Leila Mohamed Ali
2nd Applicant
and
Sofia Ali
1st Respondent
Farida Ali
2nd Respondent
and
Susan Robinson
Interested Party
(Being an application for stay of execution pending the hearing and determination of an intended appeal from the Judgment of the High Court of Kenya at Eldoret (H. Omondi, J.) dated 12th February 2020 in Citation Case No. 45 of 2017)
Ruling
1.Before us is an application dated 3rd May 2023, in which the applicants pray for the following orders pending the hearing and determination of this application and the intended appeal:
2.The application is brought under Rule 5(2)(b) of the Court of Appeal Rules, and Section 3B of the Appellate Jurisdiction Act. The application is based on the following grounds:
3.The application was further supported by the affidavit of Truphena Tapen Kuko sworn on 3rd May 2023 in which she reiterated the grounds on the face of the application and stated that:
4.The respondents through the replying affidavit of the 1st respondent sworn on 11th August 2023 and also on behalf of the 2nd respondent stated that:
5.When the application came up for hearing on 22nd November 2023, Mr. Sala, learned counsel appeared for the applicants whereas Mr. Orenge, learned counsel appeared for the respondents. Counsel relied on their respective written submissions which they opted to briefly highlight.
6.Mr. Sala submitted that the leave issue as raised in the replying affidavit was not prayed for. In any event, the issue of leave from the High Court is one of the rights in line with Sections 65 and 75 of the Civil Procedure Act.
7.Counsel pointed out that the application is merited as the respondents have since moved the court to seek confirmation of grant, and to have the applicants removed as administrators.The application came up for hearing on 26th January 2024.
8.Counsel submitted that the reason for the delay in filing the record of appeal was that it took too long for the court to type the proceedings. In any event, the notice of appeal was filed eight (8) days after the judgment.
9.The applicants cited the case of Butt v Rent Restriction Tribunal [1982] KLR 417 in submitting that the delay in prosecuting the application is not inordinate as their application for stay orders before the trial court was denied.
10.While relying on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the applicants submitted that the intended appeal will be rendered nugatory as the respondents have already applied for the confirmation of the grant. In any event, the house in contestation is worth 70 million, and once it is sold and the proceeds divided among beneficiaries, recovering the said property or its value will be very hard.
11.Opposing the application, Mr. Orenge contended that leave to appeal is not covered by the Civil Procedure Act but rather by the Law of Succession Act. Counsel pointed out that since leave was not obtained, the application is fatally defective.
12.Counsel submitted that the reason the respondents sought the removal of the applicants as administrators was due to a lack of cooperation. They have been collecting rent and keeping it to themselves to the detriment of the other beneficiaries.
13.The respondents pointed out that the application has been filed over 2½ years after judgment was delivered and no reason has been given for the delay.
14.They were of the view that the applicants would suffer no substantial loss as they were challenging a 30% share of the deceased’s property.
15.We have thoroughly considered the application, along with the supporting documents, affidavits, counsels’ submissions, relevant case law, and legal provisions.
16.The respondents contend that this Court cannot entertain the present application, the same having arisen from a succession cause and the applicants having failed to obtain leave to appeal as provided for under Section 50 of the Law of Succession Act. In the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR, the court while addressing the issue of the validity of the notice of appeal stated thus:
17.It follows therefore that the issue for determination before us is a prayer for a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. The applicants have filed their notice of appeal dated 12th February 2020, and the said notice has not been challenged or struck out; this Court is therefore clothed with the authority to determine the application herein.
18.Our jurisdiction under Rule 5(2)(b) is original, independent, and discretionary. However, we must exercise this discretion judiciously and rationally, and not out of impulsiveness or sympathy.
19.Rule 5(2)(b) is a procedural provision that allows the court to protect the subject matter of an appeal when it has already been filed. In the case of Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR, the court held that:
20.It follows therefore that, to succeed in an application for a stay of execution, the applicants must show that their intended appeal is arguable. Once this has been established, the applicants must also demonstrate that if their appeal were to be successful, it would be rendered nugatory absent stay. This principle was demonstrated in the case of Trust Bank Limited & Another v Investech Bank Limited & 3 Others [2000] eKLR.
21.In the case of Dennis Mogambi Mang'are v Attorney General & 3 Others [2012] eKLR, this Court held that:
22.On whether or not the applicants have established a valid basis for an arguable appeal, the applicants merely stated that they have an arguable appeal with high chances of success. They did not expound on the issues they intend to raise in their appeal which they stated had already been filed. The respondents stated that the applicants were challenging a 30% share of the estate in question. To our minds, no single issue has been raised by the applicants in this application to show that they have an arguable appeal.
23.It is trite that the law aids the vigilant and not the indolent. The judgment appealed against was delivered on 12th February 2020 and a notice of appeal was lodged on the same date. At the time of filing this application, it had been about 2½ years. The applicants attributed the delay in filing the present application to a delay in obtaining typed proceedings. We find this explanation to be lacking in quality of persuasion, as an application for a stay does not require typed proceedings to be filed.
24.It is common ground that the applicants were the administrators of the estate of the deceased, and due to a lack of cooperation the respondents moved the court to have them removed as administrators and the matter is pending before the court. The applicants submitted that the appeal will be rendered nugatory if the stay order is not granted and the court proceeds with the confirmation of the grant, which will have the effect of a house worth Kshs. 70 Million being divided among the beneficiaries of the deceased. They were also apprehensive that they would suffer substantial losses if the division was done.
25.This being a succession cause, we find that when the deceased dies without a will or the will is contested and the estate is declared intestate, the property of the deceased is to be divided equitably among the beneficiaries. It follows therefore that no substantial losses will befall the applicants in the event the property in question is divided among the beneficiaries as they will receive their equitable share of the estate of the deceased.
26.In the case of Reliance Bank Ltd v Norlake Investments Ltd [2002] I EA 227, the court held that the factors which can render an appeal nugatory are to be considered within the circumstances of each particular case, and in doing so, the Court is bound to consider the conflicting claims of both sides. In the circumstances of that particular case, the Court stated inter alia:
27.In the application before us, the applicants have not demonstrated to our satisfaction the hardship they are likely to suffer should a stay of execution order not be granted. We find that no prejudice will be occasioned to the applicants.
28.In the result, we are not inclined to exercise the Court's discretion in favour of the applicants. Consequently, the application dated 3rd May 2023 lacks merit and is accordingly dismissed.
29.This being a matter involving family members, we direct each party to bear their own costs.Orders accordingly.
DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MARCH, 2024.F. OCHIENG.......................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb.......................................JUDGE OF APPEALW. KORIR.......................................JUDGE OF APPEALI certify that this is a true copy of the original.signedDEPUTY REGISTRAR