Kakyema & 2 others v Itinga & another (Family Appeal E004 of 2022) [2025] KEHC 9383 (KLR) (16 January 2025) (Ruling)
Neutral citation:
[2025] KEHC 9383 (KLR)
Republic of Kenya
Family Appeal E004 of 2022
TM Matheka, J
January 16, 2025
Between
Rueben Kioko Kakyema
1st Applicant
Joyce Wanza Wambua & another
2nd Applicant
and
Kioko Wambua Itinga
1st Respondent
James Kyalo Wambua
2nd Respondent
Ruling
1.What is before me is the application dated 25/03/2024 and is brought under Section 47 of the Law of Succession Act, Section 3A of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.The court does set aside, in its entirety, the order issued on 14/03/2024 rejecting the appeal and remitting the matter to the lower court for disposal.c.Upon setting aside the order, the court does reinstate the appeal pending hearing and determination of the ELC proceedings in Makueni ELC No. E011 of 2020.d.The court be pleased to extend the order for stay of execution issued by the Chief Magistrate’s Court in the succession proceedings subject of this Appeal on 23/06/2021.e.The costs of the summons to be borne by the respondents.
2.The application was supported by the grounds on its face and the 1st applicant’s affidavit sworn on the same day. The applicant deponed that the counsel who appeared on his behalf failed to appraise court on the following material facts;a.That the Order of the Chief Magistrate Court made on 23/06/2021 has never been complied with and the entire compensation is still held by the NLC.b.That the ELC at Makueni has already determined that the compensation for the developments made by the 1st applicant on the Properties are payable to him with interest at 12% p.a. The ruling was exhibited as RKK1.c.That during assessment and valuation, the NLC indicated that the awards for the improvements were payable to him and the decision was enforced by the ELC. The Valuation Reports and awards are exhibited as RKK 2, 3, 4 & 5.d.That the ELC is on course to determine the lawful owner of the Properties and hence the rightful beneficiary of the compensation for the land and enforcing the Order of the Chief Magistrate’s Court issued on 23/06/2021 will occasion prejudice to him and confuse the course of the ELC proceedings.e.That the ELC suit was scheduled for a pre-trial conference on 18th March 2024 and he had fully complied. He was to seek for a hearing date only for the Respondents (Defendants in the ELC) to serve an application seeking to have the ELC suit transferred to the Chief Magistrate’s Court and placed before the same judicial officer who heard and is now likely to hear the succession proceedings if the Order of this Hon. Court of 14/03/ 2024 is not vacated. Copies of the e-filing case activities extract and the Notice of Motion (ELC) dated 07/03/2024 are exhibited as RKK 6 & 7 respectively.f.That the Respondents’ concerted effort to have the ELC and succession matter remitted to the lower court Chief Magistrate demonstrates bad faith and a hidden agenda.g.That his Advocates on record have advised him, which advice he verily believes to be true that the compensation for the developments does not form part of the Estate of the Deceased hence is not available for distribution by either this Hon. Court or the Chief Magistrate’s Court.h.That the Chief Magistrate’s Court on 28/04/2021 stood over the cause pending determination of the ELC matter. That his Advocates on record have advised him that remitting the matter to the Chief Magistrate’s Court will have no effect because the stay order is still in force until the ELC suit is determined. A copy of the certified proceedings is exhibited as RKK 8.i.That in a surprising turn of events, on 23/06/2021, the Chief Magistrate Court, which had stayed proceedings pending determination of the ELC proceedings allowed confirmation of grant and directed the NLC to deposit the entire proceedings in a joint account in the names of the 1st and 2nd Respondents. A copy of the Order is exhibited as RKK 9.j.That the Court varied a consent order it had made on 24/10/2018 - that the proceeds be deposited in a joint account in the names of the 3rd Appellant and the Respondents- on its own motion and in the absence of the Appellants. The Consent Order is exhibited as RKK 10.k.That the confirmation of grant was made in the absence of the 2nd and 3rd Appellants who are the wife and 1st born son of the Deceased, respectively.l.That the Chief Magistrate Court failed to determine the Appellants Summons for Revocation of Grant dated 04/11/2020. That he summarily dismissed the same on 24/03/2021 and directed the parties to file a consent to resolve the matter instead of determining the pertinent issues raised in the Summons including that the 2nd and 3rd Appellants had not consented to the appointment of the Respondents as administrators of the Deceased Estate as required by law. The Summons for Revocation of Grant is exhibited as RKK 11.m.That while the Chief Magistrate’s Court had not discharged the Order of stay of proceedings pending determination of the ELC proceedings, the Court issued Summons to the Director Legal Affairs and Enforcement of the NLC to attend Court and explain why it had failed to comply with the orders of the confirmed grant in proceedings of 03/11/2021. Reference is made is to exhibit marked RKK8 above.n.That while service of the Summons was effected by the 1st Respondent, who is not duly appointed to effect service of court process as advised by his Advocates on record, the Hon. Chief Magistrate, on 01/12/ 2021 issued warrants of arrest against the NLC Officer in very determined efforts to ensure that the Order of 23/06/ 2021 is executed. Reference is made is to exhibit marked RKK8 above.o.That having confirmed the grant in the absence of the Appellants, he was advised by his advocate to appeal against the confirmation of grant and issuance of the grant of letters of administration intestate for want of consent of all the legitimate beneficiaries of the Estate. That due to the lapse of statutory time, his advocate applied for extension of time and stay of the lower court proceedings. The proceedings were stayed and the matter was fixed for inter-parties hearing. The order is exhibited as RKK 12.p.That in granting the order, this court directed that the appeal be registered within 30 days and that the Chief Magistrate’s Court proceedings would remain stayed during the period. That the stay orders would stand vacated if the appeal was not registered within the 30 days. That the appeal was registered on time hence the stay orders are still in force. A copy of the order issued on 22/07/2022 is exhibited as RKK 13.q.That the Order issued by Hon. Justice Ongu’di sitting on appeal on 27/02/2020 was made long before the ELC proceedings begun and no orders had been issued by the ELC on disbursement of the developments award issued in his favour. That having cognizance of the ELC proceedings, the Hon Justice Dulu found that the ELC was better placed to determine whether or not the compensation for land would be deposited in Court pending determination of the ELC proceedings. Reference is made is to exhibit marked RKK8 above.
3.He deponed that there will be no prejudice occasioned to the Respondents because they have never used the Properties since 2002 when he took possession from their deceased father. That he developed the properties in their presence and no resistance whatsoever was expressed. That the Respondents were aware of the sale between him and their father. That on 04/06/2001, the 1st respondent collected, from the 1st applicant, a loan of Kshs.5,000 on behalf of his father. That the agreement was that the deceased would use the money to cater for litigation against a trespasser and after succeeding in the case, he would sell the properties to the 1st applicant and the loan would be deducted from the purchase price. The agreements are exhibited as RKK14, 15 & 16.
4.Further, he deponed that he will be greatly prejudiced if the funds are released to the Respondents because their accountability cannot be assured. That he continues to be prejudiced by the high costs of litigation and retaining counsel because the Respondents are taking the Courts in circles trying to obtain orders in their favour by misleading the Court and filing unending applications.
The Response
5.The application was opposed through the 1st Respondent’s Replying Affidavit sworn on 14/05/2024, his supplementary affidavit sworn on 03/07/2024 and grounds of opposition dated 14/05/2024.He deponed that the transaction relating to land parcels Mavindini/Mavindini 1238 & 1239 did not confer any beneficial right of ownership or otherwise as no formal land control board consent was obtained. That the applicant has raised the issue of the two land parcels in the ELC case which is still pending and therefore he cannot litigate over the same matter in two court divisions simultaneously.
6.He deponed that the pleadings in the alleged appeal are strikingly similar to those of Makueni High Court Succession Appeal No. 34 of 2018 which were concluded by the court on 27/02/2020. The ruling is exhibited as KWI-1.
7.He deponed that there is a valid ruling in his favour and he will be prejudiced if the same is stayed. That the applicant has not demonstrated that a notice of appeal has been formally lodged in order to comply with Rule 5(2) (b) of the Court of Appeal. That there is inordinate delay in bringing the Chamber Summons and the same should be struck out for duplicity and for being frivolous.
8.He deponed that the averment about the applicant’s counsel failing to appraise the court about certain matters is an afterthought and cannot form the basis of an application for review. That the law makes in mandatory for litigants to be vigilant and pro active in prosecuting their cases hence ‘mistake by counsel’ is a scapegoat and tactic employed by the applicant to avoid owning up for lack of due diligence. He deponed that according to advice by his advocate which he verily believes to be true, litigation needs to come to an end hence the application is not merited.
9.He deponed that it is preposterous and fallacious for the applicant to claim that he has obtained conclusive orders determining his right to part of the award by NLC and also state that the matter was slated for pre-trial conference on 18/03/2024. He deponed that they applied to have the ELC matter transferred to the Chief Magistrate’s court since it is the lowest court competent to try the matter. That the applicant mischievously filed the suit before the ELC instead of the subordinate court in order to block avenues for revision and limit their right to appeal.
10.He deponed that the application is res judicata because the orders sought are similar to the ones in Makueni High Court Succession Appeal No. 34 of 2018 which has been concluded. That the applicant is forum shopping and hell-bent in ensuring that the real issues are not determined by the ELC and the subordinate court.
11.The grounds of opposition raised are that;a.The application is bad in law and an abuse of the court process.b.The honorable court is not seized of jurisdiction to hear the application on account of the fact that the matter belongs to the Chief Magistrate and the Environment & Land Court.c.That the subject matter leading to the application was concluded on 27/02/2020 in Makueni High Court Succession Appeal No. 34 of 2018
12.The application was canvassed through written submissions.
Applicant’s Submissions
13.The applicant identified the issues for determination to be;a.Whether the appeal should be reinstated for determination on merit?b.Whether the lower court succession proceedings should be stayed until the ELC proceedings on ownership of the suit properties are determined?c.Who bears the costs of the summons?
14.As to whether the appeal should be reinstated, the applicant submitted that the distribution granted by the lower court cannot stand because the ELC has already determined that part of the compensation belongs to the 1st appellant. That having stood over the succession proceedings on 06/02/ 2019, the lower court should not have proceeded to distribute the estate on 23/06/2021 while the ELC had not issue a determination on the rightful owner of the suit properties. That for good order, it is imperative that the lower court succession proceedings be stayed pending the determination of the ELC proceedings which will dictate how the estate of the deceased should be distributed among the beneficiaries. He contended that these facts were not explained to this court when it issued the orders rejecting the appeal and urged that the same be reinstated for determination on merit. That the counsel had been recently employed into the firm and it appears that she had not fully familiarized herself with the facts as required. They relied on Rupa Savings & Credit Cooperative Society -vs- Violet Shidogo (2022) eKLR which quoted with approval the decision of Court of Appeal in Itute Ingu & Another -vs- Isumael Mwakavi Mwendwa (1994) eKLR as follows;
15.He also cited Geoffrey Oguna & another -vs- Mohamed Yusuf Osman & 2 others [2022] eKLR where the court stated;
16.As to whether the lower court proceedings should be stayed, he submitted that the jurisdiction of the ELC and the High Court in succession matters are very different. That while the High Court has the mandate to distribute the estate assets among the beneficiaries of an estate, it can only distribute the assets that belong to the estate. That the determination of the question of ownership is specifically reserved for the ELC. That a determination has already been made that the he (1st Appellant) is entitled to compensation for developments but the court is yet to determine ownership. That it is prudent for the ELC to make its determination on ownership and then the succession court will distribute the estate. He relied on re Estate of Atibu Oronje Asioma (Deceased) [2022] KEHC where the court stated;
17.He also relied on Mwaniki & 7 Others -vs- Mukita & 2 Others (2022) KEHC where the court stated;
18.With regard to costs, he submitted that the respondents should bear the same as they posed delaying tactics and mislead the court on the facts thus leading to issuance of the impugned order.
Submissions by the Respondents
19.The respondents submitted that this court was right in declining to certify the application urgent and technically dismissing it by reiterating its earlier position on the matter. They relied on Fortis Tower Management Ltd & another -vs- Trendmark Computers Limited [2018] eKLR where the court stated that;
20.They identified the issues for determination as follows;a.Whether the Summons dated 25th March 2024 is incurably defective for being filed in a vacuum since the court had already downed tools regarding the appeal on grounds of jurisdiction.b.Whether the Applicant has met the threshold for grant of orders sought.c.Who should bear the cost.
21.As to whether the application is incurably defective, they submitted that this court had made its decision on the issues which have been brought again under the guise of review. That this court’s ruling of 14/3/2024 renders this court functus officio since the applicant has not met the threshold with regards to review applications. They relied on Said Baya Mwabaya & another -vs- Suheel Ahmed Nazir & another [2021] eKLR where the court quoted the Supreme Court’s approval in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs. IEBC & Others [2013] eKLR of an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the Functus Officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832 as follows;
22.They submitted that this Honorable Court found that it had no jurisdiction to entertain the appeal and as such, it cannot allow the current application. They relied on the case of Yano & another -vs- Mogona (Civil Appeal E020 of 2020) [2024] KEHC 5733 (KLR) (15 May 2024) where it was held
23.They submitted that the case belongs to the litigants and not their respective counsel hence the applicant ought not to be permitted to benefit by blaming his counsel for lack of initiative. They relied on John Ongeri Mariaria & 2 Others -vs- Paul Matundura Civil Application No. Nai. 301 of 2003 [2004] 2 EA 163, cited Teachers Service Commission -vs- Ex-parte Patrick M Njuguna [2013] eKLR where the court opined thus:
24.They also relied on Savings and Loans Limited -vs- Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002 as quoted with approval in Johnson Ondimu Mogusu -vs- Elkana Moenga Ondieki & 2 others [2020] eKLR where the court stated;
25.As to whether the applicant has met the threshold for grant of the orders sought, they submitted that the orders sought are for review of this court’s previous rulings but the grounds advanced are not the ones set out under Section 80 of the Civil Procedure Act or Order 45 of the Civil Procedure Rules 2010. They relied on Yusuf Athman Hassan & another (Suing as beneficiaries Administrators of the Estate of Athuman Hassan Mwaliphunzo alias Athumani Gunia (Deceased) -vs- District Land Registrar, Kwale & another; Iddi A.M Ganguma & 6 others (Interested Parties) [2020] eKLR where the court stated:-
26.They submitted that the applicant came to court seeking an equitable relief with soiled hands hence does not deserve such reliefs. That reinstatement of a dismissed suit depends on the discretion of the court but the discretion must always be exercised judiciously and based on sound legal principles. They relied on JMA -vs- RGO [2015] eKLR where it was held that;
27.They submitted that paragraphs 10 and 11 of the supplementary affidavit dated 03/07/ 2024 has falsehoods and contradictory statements put forward by the applicant in an effort to mislead the court into granting the orders sought. That paragraph 16 of the said supplementary affidavit is also important as it highlights the assessment this honorable court has made of the applicant’s antics aimed at delaying the conclusion of the cases before the subordinate court. They contended that the application is without merit, a grope in the dark, non-starter, full of falsehoods and the reasons given by the Applicant for reinstatement are false and unsatisfactory.
28.Further, they submitted that the application satisfies the pre-conditions that qualify a litigant to be declared as engaging in abuse of the court process. That he has lodged cases under two different jurisdictions in an attempt to enforce a perceived right and is seeking for reliefs that he could still obtain before either the subordinate court or the Environment and Land Court. That the application is also actuated by malice and filed with the sole purpose of vexing by delaying the expeditious disposal of the succession case before the subordinate court. They relied on Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR where the court stated that:
29.They submitted that a litigant has no right to pursue pari pasu two processes which will have the same effect in two courts either at the same time or at different times with a view of obtaining victory in one of the process or in both. That litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. That it is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks. They urged the court to dismiss the application with costs to them.
30.The history of this matter is important in order to get perspective.
31.The respondents and 3rd appellant are children of the deceased and the 2nd appellant is their mother. The 1st appellant/applicant claims to have purchased the estate property from the deceased prior to his demise. The estate property is comprised of land parcels Mavindini/Mavindini 1238 and 1239 (herein after the property).
32.In the year 2016, the National Land Commission (NLC) commenced compulsory acquisition of land which was situated on the site identified for construction of Thwake Multipurpose Dam and the property was in the list of compulsory acquisition.
33.The awards from NLC dated 26/05/2016 indicate; Mavindini/1238Pay NLC for land kshs 4,398,874/= pending successionPay Reuben Kioko Kakyema Kshs 3,162, 435/= for improvementsMavindini/1239Pay NLC for land Kshs 468,000/= pending successionPay Reuben Kioko Kakyema Kshs 108,000/= for improvements
34.On 12/08/2016, the appellants filed Succession Cause 139 of 2016 in the Chief Magistrate’s Court at Makueni where they petitioned for Special Limited Grant ad colligenda bona defuncti. The petitioner was Mboya Wambua Itinga (3rd Appellant) and he indicated that the purpose of the grant was for ‘collecting the award of compensation arising out of compulsory acquisition of the deceased’s parcels of land being Mavindini/Mavindini 1238 & 1239 by the National Land Commission for construction of Thwake Multi-purpose Dam Project.’
35.In the said petition, the petitioner indicated that the property had been sold to Reuben Kioko Kakyema (1st Appellant/Applicant) but transfer had not been done. He also indicated that the deceased was survived by him (3rd appellant) and Joyce Wanza Wambua -wife (2nd appellant) only. A grant was subsequently issued on 19/10/2016 and confirmed on 04/11/2016.
36.Upon learning about the succession case, the respondents filed an application for revocation of grant on 15/01/2018 on the ground of concealment of material facts i.e, that the petitioner concealed material facts by stating that the 2nd and 3rd appellants were the only beneficiaries of the deceased.
37.On 24/10/2018, the parties recorded a consent in the following terms;a.The entire proceeds of compensation in respect of compulsory acquisition of land parcels number Mavindini/Mavindini 1239 and 1238 be released to Mboya Wambua Itinga, Kioko Wambua and James Kyalo Wambua.b.The money be deposited into a joint account in the names of Mboya Wambua Itinga, Kioko Wambua and James Kyalo Wambua.c.The parties to apply for a full grant within 30 days from today.d.Mention on 5th day of December 2018.
38.Aggrieved by that consent, the 1st Appellant/Applicant applied to have it set aside on the ground that he had been left out yet he was a beneficial owner of the property. On 29/11/2018, the trial court ordered as follows;
39.The 1st Appellant/Applicant was still dissatisfied with the above development and he filed an appeal to this court to wit Makueni High Court Succession Appeal No. 34 of 2018. One of his grounds of appeal was that the trial Magistrate erred by failing to recognize that he is the actual and beneficial owner of the property.
40.Together with the appeal, the 1st Appellant/Applicant filed an application to restrain the respondents from receiving the compensation in their joint names. When the application came up for hearing on 17/01/2019, the court (Kariuki J) recorded the following consent;a.That, by consent of the advocates for the parties, the orders of 24/10/2018 in Succ. No. 139/2016 be and are hereby stayed until further orders of this court.b.That, the amount Kshs.8,137,309/= subject matter herein and in Makueni SPM Succ. 139/2016 to be deposited in court by the National Land Commission as compensation for Mavindini/Mavindini/1238 and Mavindini/Mavindini/1239 until further orders of the court.c.That, the money shall not be withdrawn or utilized without court orders.d.That, parties to expedite matter on entitlement of the same monies.e.That, mention on 28/03/2019.
41.The respondents herein filed an application in the said appeal seeking;
42.In a ruling delivered on 27/02/2020; this court (Ong’udi J) stated that;
43.Secondly, the Appellant is behaving as if ownership has already been determined yet the properties are still in the deceased’s name and the alleged sale agreement is highly contested. Actually, after looking at the orders issued by the trial court and the grounds in the memorandum of appeal, I am of the firm view that this appeal is premature, unnecessary and is derailing the determination of the real issues.
44.Contrary to the Appellant’s submissions, the order of 29/11/2018 was an addition to the orders of 24/10/2018 and not a review. Reading the two together has the effect of preserving the compensation award pending the determination of the rightful heirs. The trial court had already directed the parties to apply for a full grant within 30 days from 24/10/2018 and that is the forum where the Appellant should canvass his case of being a creditor of the deceased’s estate.
45.Upon consideration of the facts placed before me I find that the lower court should be given an opportunity to hear and determine the matter before it. The money from the National Lands Commission is safely protected by the order issued on 24th October 2018 which order MUST be complied with by the concerned parties.
46.The order made by this court on 17th January 2019 was made without the participation of the Applicants and cannot be said to be a consent order involving ALL parties herein.
47.I therefore find no sufficient ground for interfering with the order appealed against and summarily reject the appeal under section 79B of the Civil Procedure Act with costs to the 2nd, 3rd and 4th Respondents. That automatically vacates the orders of 17th January, 2019. The matter Makueni SPM succession cause No. 139 of 2016 should resume for hearing and determination as soon as possible.
48.After the determination by the High Court, the respondents returned to the trial Court and petitioned for a full grant and through an application dated 23/10/2020, they applied for confirmation of grant. The application stalled as the parties could not agree on the mode of distribution. The trial court was also informed that the 1st Appellant /Applicant had filed the ELC suit.
49.On 23/06/2021, the respondents returned to the trial Court and informed the court that their brother had declined to have the joint account opened and that the NLC had told them that the money would be returned to the National Government at the end of the financial year on 30/06/2021. They were also told that the funds account which had been opened to compensate farmers over Thwake Dam would be closed. Consequently, the trial Magistrate ordered that;
50.As the deceased’s family tried to have the grant confirmed in the trial court, the 1st Appellant/Applicant moved to the ELC Makueni and sought orders for the release of Kshs 3,270, 435/= being the assessed compensation for developments on the property. In a ruling delivered on 02/09/2021, the court ordered as follows;
51.Aggrieved by the trial court ruling of 23/06/2021 the appellants herein returned to this court via Makueni High Court Misc Appln No. E002 of 2021 seeking inter alia for extension of time to appeal, setting aside of the trial court order of 23/06/2021 and stay of the trial court proceedings pending the determination of the ELC case. In a ruling delivered on 22/07/2022, this court (Dulu J) issued the following orders;a.I grant extension of time for the applicants to file an appeal from the succession proceedings herein. The appeal will be filed within 30 days from today.b.I grant stay of any further proceedings in Makueni Chief Magistrates Succession Cause No. 139 of 2016 pending determination of the intended appeal herein. If the appeal is not filed within 30 days, the stay orders granted herein will automatically lapse.c.I decline to grant orders for deposit in court of land compensation money, which in my view, can be pursued in the pending ELC proceedings.d.I award the costs of the present application to the respondents, as no formal appeal has been filed yet.
52.Pursuant to the above orders, the Appellants filed the current Appeal which this court (Matheka J) summarily rejected on 14/03/2024. The applicant now wants this court to set aside the said orders and to reinstate the appeal for hearing.
53.Meanwhile, the respondents applied to have the ELC matter transferred to the subordinate court and the application is awaiting determination.
Analysis and Determination.
54.The only issue for determination is whether the application has any merit.
55.The application is brought inter alia under Order 45 of the Civil Procedure Rules, 2010 seeking the review of the orders of this court of 14th March 2024 by setting the same aside.Order 45 states Application for review of decree or order [Order 45, rule 1.]1.Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.2.A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present tothe appellate court the case on which he applies for the review
56.Rule 3 states that the court may only grant the prayer if there is sufficient ground. Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.
57.I have set above all the facts of the case, including the whole history of the matter in an effort to understand what the matters are that the applicant’s counsel is alleged to have failed to place before me that would have made me decide otherwise.
58.It is evident from the foregoing that the applicant has been engaged in countless applications clearly aimed at stalling or stopping, in the interim, the full hearing and determination of the matter before the subordinate court, yet in my view that court is seized with the jurisdiction to determine the issues before it.
59.The applicant has placed his issues for determination are whether he is the owner of the two properties Mavindini/Mavindini/1238 and 1239, and whether he is entitled to the whole of the compensation by NLC on their compulsory acquisition of the said properties before the ELC Court.
60.The respondents issue is that the said properties are the subject of the succession cause that is before the CM’s court, and their ownership is contested.
61.What came before me was whether or not the applicant could appeal against the CM’s court order for the preservation of the compensation award, and issue that had been dealt with by my sister Hon Ong’udi J.
62.I did not see any reason the depart from her decision and proceeded to dismiss that application.
63.In the succession cause the only asset available for distribution is the compensation from NLC which has been categorized into two i.e compensation for the land and compensation for the developments. The total amount is Kshs 8,137,309/=.
64.Having looked at the litigation history of this matter, it is clear that all this back and forth is about where the compensation money should be kept pending the outcome of the ELC case.
65.The ELC has already pronounced itself on the compensation for developments and the1st Applicant/Appellant should return to that forum for enforcement.
66.On the issue of stay of proceedings, the value of the subject matter is well within the pecuniary jurisdiction of the Chief Magistrate’s court and should be canvassed in that court. In any case, the 1st Applicant/Appellant has admitted that there is a subsisting order of stay in the trial court pending the determination of the ELC matter, that is an issue that does not require the attention of this court.
67.The 1st Applicant/Appellant’s complaint against the respondents’ application to have the ELC matter transferred to the same Chief Magistrate’s court which is handling the succession matter is untenable. It is the legal position that cases should be instituted in the lowest forum which is competent to handle the matter in order to give room for any appellate process that may ensue. This is supported by Section 11 as read with section 18(1)(a) of the Civil Procedure Act which provide that a suit shall be instituted in the Court of the lowest grade to try it empowers the High Court, on application of the parties or on its own motion,
68.It is noteworthy that while the first prayer in this appeal is that the trial court order of 23/06/2021 be set aside in its entirety, prayer (d) of this application seeks that the stay order issued by the trial court on 23/06/2021 be extended supporting the respondents that the 1st Applicant/Appellant is a vexatious litigant. He has accused the respondents of taking the Courts in circles trying to obtain orders in their favour by misleading the Court and filing unending applications. Looking at the litigation history however, this description aptly applies to the 1st Applicant/Appellant.
69.The 1st Applicant/Appellant has argued for reinstatement of this appeal on the ground that the distribution ordered by the trial court cannot stand because the ELC has already determined that part of the compensation belongs to him. However, the matter is still pending before the ELC and the option of revocation is still available to the applicant in the trial court.
70.Is there anything new as required by Order 45 of the CPR that would have persuaded me to rule otherwise? All the listed material facts were on the record when I determined the issues that were before me vide the ruling of 14/03/2024and they each one of them contributed to that outcome. With great respect, my consideration of the same facts lead to me to the same outcome, the same that was drawn by Ong’udi J, that for reasons drawn from the summary drawn above this appeal is for rejection.
72.It is noteworthy again that the applicant here is unable to draw the line between the jurisdiction of the ELC Court and the P&A Court. They are not the same . For instance he submits That for good order, it is imperative that the lower court succession proceedings be stayed pending the determination of the ELC proceedings which will dictate how the estate of the deceased should be distributed among the beneficiaries. The ELC Court cannot dictate to the P&A Court how the estate of the deceased will be distributed. Those are two different jurisdictions that cannot be mixed, they can be complementary but one cannot dictate to the other.
73.Even on that limb, I am of the view that it is only fair and just that the Subordinate Court be allowed to deal with the matter before it in accordance with the law. The applicant has the audience to put his case with respect to the issues he has brought in the impugned ruling there.
73.In that event the application is without merit. It is dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED VIA CTS THIS 16TH FEBRUARY, 2024.MUMBUA T MATHEKAJUDGECA Nelima/ChrisApplicant's Counsel - B.M Musau & Co. AdvocatesRespondents’ Advocates - Thomas Maosa & Co. Advocates