Obange & another v Oganyo & 4 others (Civil Appeal E033 of 2021) [2022] KEHC 14401 (KLR) (25 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 14401 (KLR)
Republic of Kenya
Civil Appeal E033 of 2021
RE Aburili, J
October 25, 2022
Between
Benter Ogola Obange
1st Appellant
Austine Juma Aol
2nd Appellant
and
Walter Owaga Oganyo
1st Respondent
Peter Olango Oganyo
2nd Respondent
Rose Akinyi Omware
3rd Respondent
Mark Juma Okwadha
4th Respondent
Eunice Atieno Awuor
5th Respondent
(An application for leave to appeal to the Court of Appeal from the judgment of the High Court rendered on 26/4/2022 in Succession Matters in exercise of its appellate jurisdiction)
Ruling
RULING ON LEAVE TO APPEAL
The application
1.On April 26, 2022, this Court delivered judgment in this appeal which arose from the Magistrate’s Court in Succession matters, revoking the grant which was issue to the appellants herein and ordering that a fresh grant be sought, wherein all identified bonafide beneficiaries of the deceased Aol Misudia shall be included as beneficiaries. The Court also identified the dependants of the deceased who had been left out of the estate.
The Applicants’ Case
2.Vide the application dated September 27, 2022, the appellants/applicants herein Benter Ogola Obanga and Austine Aol seek from this court leave to appeal to the Court of Appeal the judgment of this Court rendered on April 26, 2022. They also pray for stay of execution of the decree or judgment pending appeal and that costs to abide the outcome of the appeal. The grounds upon which the application is predicted are that the applicants wish to seek the opinion of another court and that there is no automatic right of appeal from the decisions from this Court to the Court of Appeal in succession Matters hence leave must be obtained first.
3.Further, that the applicants have an arguable appeal as shown by a draft memorandum of appeal and that it is in the interest of justice that leave sought be granted. The applicants also undertake to expeditiously prosecute the intended appeal in a timely manner so as not to prejudice the Respondents.
4.The application is supported by the affidavit sworn by Austine Juma Aol the 2nd appellant/applicant wherein he reiterates the grounds and adds that if the judgment of this Court is executed, the applicants who are the deceased’s rightful beneficiaries will be disadvantaged and will suffer irreparable damage.
The Respondent’s Case
5.The application is opposed by the Respondents who filed an affidavit in Reply sworn by Walter Owaga Oganyo, the 1st Respondent, on behalf of and authority of his co-Respondents.
6.On the prayer for stay of Execution, it is deposed in contention that there is no sufficient cause shown; that there is no prima facie arguable appeal; that the applicants have intermeddled with the estate of the deceased by purporting to sell the land and put into possession some named persons; and that it is those purchasers who are pushing for the challenge of Judgment of this court as interlopers, invaders and trespassers having no legitimate grievance.
7.It is further contended that the Orders sought will prejudice the Respondents’ interests and that the Respondents have taken steps by setting in motion, with participation of the applicants, the process of petitioning for fresh grant but that the applicants have refused to cooperate and or attend joint meetings. That there are no substantial questions of law to be adjudicated upon by the Court of Appeal except questions of fact which cannot be entertained in a second appeal.
8.It is further deposed that leave to appeal to the Court of Appeal can only be granted when this Court is exercising original jurisdiction in succession proceedings, not appellate jurisdiction as is the case herein.
9.The respondents further contend that they have no intention of subdividing or transferring the estate land without due process and that the applicants have not offered any security for due performance of decree and that this application is encouraged by the fact that the Respondents were not ordered to pay costs of the proceedings.
The Applicant’s Submissions
10.The application was argued orally with both parties’ counsel relying on the affidavits for and against the application. The applicant also filed brief submissions and annexed authorities including the cases of Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another[2014]; John Mwita Murimi & 2 Others v Mukaba Chacha Mwita & Another [2019]eKLR; and The estate of Joey Thaara Ruria Succession Cause No 23/2018.
11.The applicants’ Counsel argued that Sections 47 of the Law of Succession Act, Rule 73 of Probate and Administration Rules, Rules 5(2)(b) 3(a)(b) of the Appellate Jurisdiction Act and Articles 159 (2)(a)(b)(d) & (e) and 164(3)(a of the Constitution donate jurisdiction to this Court to grant leave to appeal to the Court of Appeal in succession matters from the decision of this Court. The applicant also cited this court’s decision and other decisions in matters stay of execution of judgment or decree pending appeal in Paul Makatu & Another v Quadrant Services [2016]eKLR.
The Respondents’ Submissions
12.On the part of the Respondents, it was submitted by Mr Nyamori Advocate wholly relying on the replying affidavit and arguing that the right of appeal in succession matters is in the discretion of the court. That the authorities supplied by the applicants’ counsel affirm this position as they refer to matters which the High Court was exercising original jurisdiction and not appellate jurisdiction as is in the present case.
13.It was submitted that it is important to balance rights of each party, being, the right of appeal and the right to enjoy the fruits of a judgment. Mr Nyamori further submitted that the applicants are frivolous and that the lower Court and this Court properly revoked the grant. Further, that the estate has no administrator hence a new petition should be filed as directed by this court but that the applicants have refused to cooperate.
14.On the prayer for stay, it was submitted that it is not merited. Counsel prayed for costs arguing that the Respondents have spent money right from the lower Court to this Court in an estate where the deceased died in 1959 yet his estate cannot be distributed.
Analysis and Determination
15.I have considered the application which seeks stay of execution and leave to appeal to the Court of Appeal in Succession proceedings and the vehement opposition thereto.
16.The main issue for determination is whether the applicants are entitled to the orders sought for stay and for leave to appeal from this Court to the Court of Appeal in succession matters where this court is exercising appellate jurisdiction from an appeal arising from the Magistrate’s Court.
17.I will commence with the question of whether the applicants are entitled to leave of this Court to appeal to the Court of Appeal as the outcome of this question will determine whether the Court should grant stay of execution of this court’s judgment which is sought to be challenged.
18.Section 50 of the Law of Succession Act Cap 160 Laws of Kenya provides that:
19.The above Section 50(1) of the Law of Succession Act is clear and it needs no further elaboration. It speaks to the finality to the proceedings in succession matters from the Magistrate’s court to the High Court on appeal. Literally speaking, no appeal lies to the Court of Appeal from the High Court in succession matters where the High Court is exercising its appellate jurisdiction in matters emanating from the Magistrate’s Court. However, an appeal lies to the Court of Appeal from a decision of the High Court where it is exercising appellate jurisdiction in an appeal from the Kadhi’s Courts and that appeal shall lie with leave of the High Court on matters Muslim law only.
20.This legal position is supported by many decisions of the High Court and of the Court of Appeal. However, there are conflicting positions on the same issue and hence, the need for this court to bring out those different positions before reaching its determination.
21.In Julius Kamau Kithaka Vs Waruguru Kithaka Nyaga & 2 Others [2013]eKLR, the Court of Appeal stated as follows, regarding appeals from the High Court to the Court of Appeal in succession matters:
22.In the Rhoda Wairimu Karanja & Another Vs Mary Wangui Karanja & Another decision, the Court of Appeal was dealing with the question of whether an appeal would lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction and it held, as has been held in several other cases, that as there is no specific provision or automatic right of appeal provided for in law, a party would only appeal to the Court of Appeal from the High Court exercising original jurisdiction in Succession matters with leave of the High Court and where such leave is declined, then with leave of the Court of Appeal. The Court of Appeal in the Rhoda Wairimu case (supra) was also clear that the law was intended to promote finality and expedition in the determination of probate and administration disputes.
23.That situation is completely different from this case where this court has exercised appellate jurisdiction and where Section 50(1) of the Law of Succession Act is very clear that an appeal from the Magistrates court to this court is final.
24.The Court of Appeal in Josephine Wambui Wanyoike Vs Margaret Wanjiru Kamau [2013]eKLR, held that the Law of Succession Act is a self-sufficient Act of Parliament with its own substantive law and Rules of Procedure.
25.In the instant case, unlike in the various decisions relied on by the applicants where the leave to appeal to the Court of Appeal was being sought because the law does not specifically provide for such appeal to the Court of Appeal where the High Court has exercised original jurisdiction, the law provides for finality of the decision of this Court on appeal from the Magistrates’ Court.
26.In Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib [2015]eKLR, the Court of Appeal stated as follows:
27.From the above decision of the superior Court and which binds this Court, it is clear that the applicants herein cannot carta blanche, invoke the provisions of Article 164 of the Constitution and Section 47 of the Law of Succession Act or Article 48 of the Constitution or Rule 73 of the Probate and Administration Rules and claim that they are entitled to an appeal and or with leave of this Court.
28.The decision is categorical that an appeal to the Court of Appeal with leave of this court is only available where the High Court is exercising original jurisdiction or appellate jurisdiction from appeal emanating from the Kadhi’s courts. An appeal from the Magistrate’s court to this court is final meaning, an appeal to the Court of Appeal is clearly restricted by Section 50(1) of the Law of Succession Act such that the High Court has no jurisdiction to stretch the right thereof by granting leave to appeal to the Court of Appeal. That decision of the Court of Appeal is clear to me as day and night. In other words, according to the above decisions, where the statute clearly restricts the right of appeal, no leave to appeal can be granted.
29.A similar situation arose in Alexander Dismas Kosegi Vs Grace Chebor Muhena & Another and Jacob Buhangi Elaki & 16 Others (Interested parties)[2020]eKLR in Eldoret HC Civil Appeal No 74 of 2017 where the learned Judge clearly stated that:
30.Therefore, despite the applicant herein citing Section 47 of the Law of Succession Act which empowers this court to make such orders as may be just and expedient and that the applicant should be given the opportunity to pursue the appeal to the Court of Appeal, from the above decisions, that opportunity is restricted by statute at Section 50(1) of the (Law of Succession Act) and it appears that this Court cannot exercise jurisdiction that it is devoid of if it opens up Section 50(1) of the Law of Succession Act to grant leave to appeal when there is express restriction to a second appeal being preferred from the judgment of this Court on Appeal from the Magistrates court.
31.I also observe that in some persuasive decisions of the High Court, (See Re Estate of Gachoki Ruoya [2020]eKLR) the Court held that there was a right of appeal to the Court of Appeal under section 50(1) of the Law of Succession Act, with leave of this Court and the Court applied some decisions of the Court of Appeal where the latter court was referring to its jurisdiction to entertain appeals from the High Court in Succession matters where the High Court was exercising original jurisdiction.
32.I have restated above that the Court of Appeal was clear in the various of its decisions that it has jurisdiction to hear appeals from the High Court in succession matters yes but only in succession causes from the High Court exercising its original jurisdiction, which right is nonetheless not automatic, not that the Court of Appeal has jurisdiction in respect of matters where the High Court was exercising appellate jurisdiction (See Kaboi v Kaboi & Others (2018) EA 472; Francis Gachoki Murage v Juliana Wainoi Kinyua & Another, Civil App No 139/2009 and Rhoda Wairimu Karanja v Mary Wangui Karanja (supra) all cited in Malindi Court of Appeal CA No 22/2014 Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib (supra).
33.I say so because even in the Rhoda Wairimu case (supra), the Court of Appeal expressly stated as follows:
34.The Court of Appeal in Rhoda Wairimu (supra) case went further and cited Articles 64(1) of the former Constitution and 164 (3) of the current Constitution and Section 3 (1) of the Appellate Jurisdiction Act and emphasized that:
35.Nonetheless, and notwithstanding the above holdings from the various decisions of Court of Appeal, Indeed, the above decision of Rhoda Wairimu has been stated to be long winding and vexing. I agree that there appear to be some parts of the decision that are contradictory. The Court finally, after saying enough to demonstrate that under the Law of Succession Act that 'where there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court exercising original jurisdiction with leave of this court that leave of the High Court to appeal to this court in succession matters is necessary in the former’s exercise of its original jurisdiction; and that where the application for leave has been rejected by the High Court, it can be made to this court'; in Jacob Kinyua Kigano v Tabitha Njoki Kigano & Another [2014] eKLR, the Court of Appeal (Visram, Koome & Odek JJA) delivered a judgment in a second appeal from the High Court which arose from the Principal Magistrate’s Court at Kerugoya. In the said Appeal, the Respondent raised the issue of competency of the appeal in view of Section 50(1) of the Law of Succession Act on the finality of a first appeal at the High Court in succession matters. The Court of Appeal stated as follows at paragraphs 8, 9 and 10 of that judgment, although they dismissed the appeal for want of merit on account that it raised matters of fact in a second appeal, which the Court of Appeal could not intervene as the appellants had the opportunity to raise and have those matters of fact ventilated before the Magistrate’s Court and the High Court on a first appeal:
36.The above paragraphs echo what the same Court of Appeal found in Rhoda Wairimu Karanja case later on in November 2014 after a lot of anxiety on the part of the Court, citing the Francis Gachoki case and stating as follows:
37.Very recently in Khadijah Shariff Omar & Another Vs Mohammed Sharif [2019]eKLR decided on October 11, 2019 (Ruling) Sichale JA, cited Hafswa Omar Abdalla Taib & 2 Others Vs Swaleh Abdalla Taib (supra) and Rhoda Wairimu Karanja (supra) extensively and anxiously. The learned Judge had this to say on jurisdiction and departing from the earlier decisions on the appellability of a second appeal to the Court of Appeal in Succession matters which originated from the Magistrate’s Court:
38.In a latter case of Johnstone Ombima Okwaro & Another Vs Dorcas Okwaro & 2 Others [2019]eKLR - Makhandia, Kiage and Odek JJA decided on November 21, 2019, in the three Judge Bench Court of Appeal and stated as follows after citing various past decisions of the Court:
39.In the above decision, the Court of Appeal was silent on whether such leave was available even where the appeal as intended is a second appeal to the Court of Appeal.
40.In the earlier decision of Francis Gachoki Murage Vs Juliana Wainoi Kinyua & Another [2010]eKLR, RSC Omollo; DKS Aganya and Alnashir Visram JJA on April 26, 2010 the Court of Appeal was categorical that Section 50(1) of the Law of Succession Act specifically deprives the court of jurisdiction to hear appeals under that section. They cited Section 3(1) of the AJA; Articles 64(1) of the former Constitution and Article164(3) of the Constitution and they were also clear that in Kaboi Vs Kaboi and Makhangu Vs Kibwana cases, cited by the applicant are cases where the High Court was exercising its original jurisdiction and not appellate jurisdiction hence the cases were irrelevant to the issue at hand which touched on an intended second appeal.
41.From the above citations, I can’t agree more that the Court of Appeal has not settled this issue of whether appeals lie to the Court of Appeal from the High Court exercising appellate jurisdiction from the Magistrate’s Court under section 50(1) of the Law of Succession Act in view of the conflicting decisions from that Court, despite Article 164(3) of the Constitution being couched in the same way as Section 3(1) of the Appellate Jurisdiction Act and Articles 64 (1) of the former Constitution in so far as conferment of jurisdiction by the Constitution and statute is concerned.
42.What emerges from the above decisions is a conflicting set of determinations from the Court of Appeal with lack of clarity as to whether the judgment and decree of the magistrate’s court is appealable from the High Court to the Court of Appeal with leave of the High Court or not. See also the case of Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 Others [2013]eKLR where Otieno Odek JA stated as follows:
43.The question, therefore, is, what position should this Court take? In view of the conflicting determinations above, I would invoke the provisions of Article 48 of the Constitution of the right to access justice and Article 50(1) of the Constitution on the right to a fair hearing and to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body, and find that there is such right of appeal to the Court of appeal under section 50(1) of the Law of Succession Act but only with leave of the High Court.
44.For the above reasons, I now proceed and deliberate on the merits of the application for leave to appeal to the Court of Appeal as sought by the Appellants/ applicants herein. Leave to appeal is in the discretion of the Court and the above decisions that I have extensively referred to say so. However, since discretion must be exercised judiciously and not whimsically or capriciously, I must set out the principles applicable. The provisions of section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules do not provide for the time frame within an appeal may be filed or such leave to appeal may be sought. However, there can be no time infinitum. It is expected that a party who has the intention of seeking a second opinion from another higher court acts with alacrity and files such appeal or application for leave to appeal within reasonable time for consideration so that the decision that is intended to be impugned is not executed before such leave is sought.
45.The Court of Appeal –Karanja, Vishram and Koome JJ A in the case of Africa Merchant Assurance Company v Kenya Power & Lighting Company Limited [2018] eKLR stated as follows in an application for leave to appeal to the Supreme Court from the Court of Appeal:
46.Therefore, on the merits of the application beforehand, this court observes that the judgment sought to be impugned was delivered on April 26, 2022. This application was filed on September 29, 2022, five months and four days after the judgment and decree of this Court. There is no explanation given in the affidavit sworn by the 2nd appellant/applicant, who did not even say that he had the authority of the 1st appellant to swear the affidavit on her behalf or in the submissions for the over 5 months delay. In my view, the delay is inordinate and unreasonable as no explanation has been given to the satisfaction of this court for the Court to exercise discretion in favor of the applicants.
47.I borrow the words of my sister judge Njoki Mwangi J in Transtrade Services Limited v Sudi Salim Said & Salim Said (Suing as the Administrators Ad Litem of the Estate of Said Salim Said [2021]e KLR where she stated as follows in an application for extension of time where discretion of the court is invoked:
48.Albeit the application before the learned Judge was for leave to appeal out of time, the same principles of equity apply that equity aids the vigilant and not the indolent. Further, that delay defeats equity. This is in line with the constitutional dictates under Article 159(2) (b) that justice shall not be delayed.
49.On the whole, I find and hold that the applicants have brought this application with inordinate delay which has not been explained. They are therefore not entitled to the orders sought.
50.Onto the other aspect of whether the intended appeal is arguable, this is a point that is normally argued before the Court of Appeal under Rule 5(b) of the Court of Appeal Rules. However, this being an intended second appeal, this court must satisfy itself that there are points of law which the applicant intends to canvass before the superior court and which this Court can also learn its mistakes from.
51.I have perused the draft intended Memorandum of Appeal. It raises purely matters of fact which the magistrate’s Court and this Court have addressed. Although the starting sentences in the draft memorandum of appeal state that the High Court grossly misdirected itself both in law and fact, there are no points of law raised. All are factual matters which were settled by this Court which had the opportunity to peruse the original Petition for grant filed before the lower court by the applicants herein wherein I found as a matter of fact that the appellants lied to court regarding their filial relationship to the deceased Aol Misudia and even lied that there were no other survivors/dependants or beneficiaries yet in cross examination, they admitted that that was not the case.
52.For the above reasons, I find and hold that even if this court had the jurisdiction to grant leave to the applicants to file a second appeal, the application for leave was brought with unexplained inordinate delay which translate to an afterthought and secondly, that no points of law have been identified in the draft Memorandum of appeal for consideration by the second Appellate Court.
53.Accordingly, I find the application dated September 27, 2022 to be devoid of any merit. It is hereby dismissed. The parties hereto to file fresh Petition for grant as directed by this Court, listing all bona fide beneficiaries of the estate of the late Aol Migudia. I order that each party do bear their own costs.
54.This file is accordingly closed. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 25TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE