REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO.  288 OF 2015

IN THE MATTER OF THE ESTATE OF ROSEMARY ANNE AKINYI OKENO (DECEASED)

RULING

1. The deceased herein Rosemary Anne Akinyi Okeno died intestate on 28^th March, 2014. According to the petition for a grant of representation filed on 6^th August, 2015 the deceased was survived by Felecia Abunge Okeno her mother. However, the annexed chief’s letter dated 11^th April 2015 indicated that the deceased was survived by 10 dependants who are listed as either brothers, sisters, nephews and nieces.

2. A grant of letters of administration was made on 26^th January, 2016 to Eric Matakwa Okeno who is indicated as a brother according to the said chief’s letter. Vide summons dated 17^th June, 2016, the petitioner applied for confirmation of the grant. The same was confirmed on 11^th July, 2016.

3. However, by a plaint dated 9^th April, 2014 and amended on 3^rd July, 2014, one James Ovid Shugars Yhap filed civil suit No. 2/2014 Mombasa high court against Eric Okeno the said petitioner/administrator, Judith Zembi Okeno and Tony Okeno both beneficiaries of the estate seeking a declaration that he was the owner of plot No CR 51563 Sub-division No 5813 Section III/MN Kikambala and an injunction restraining the administrator from interfering or remaining in occupation of the said property. He also claimed that he was married to the deceased with whom they were registered as joint proprietors.

4. Upon hearing the suit, the court entered judgment in the plaintiff’s favour on 9^th October, 2020 and directed the defendants in that suit to vacate from Plot no 5813. The court also found that there was a presumed marriage between the deceased and plaintiff. Subsequently, the defendant filed a notice of appeal dated 20^th October, 2020 seeking to challenge the said judgment.

5. On the other hand, the plaintiff in that case moved to this court vide a summons for revocation of grant dated 19^th November 2020 seeking revocation of the grant on grounds that as a husband to the deceased he was not consulted nor was his consent sought. He also sought an injunction preserving the estate pending hearing and determination of the application. The petitioner filed a replying affidavit sworn on 27^th September, 2021 opposing the application.

6. During the  pendency  of the  revocation  application, the administrator  filed  chamber summons dated 27^th September, 2021 seeking to stay the proceedings herein pending the outcome of the Mombasa court of appeal case No EO27/2020.The  application is  premised upon grounds stated on the face of it and averments  contained in an affidavit sworn by Gerald Andego Magani  counsel for the  petitioner stating that the  crux of the revocation  application is the  contestation that the  applicant was not  a husband to the  deceased and that he was not entitled  to  ownership of LRCR. 51563(Plot No 5813) which is the subject for the pending appeal.

7. He further averred that if the revocation application was to proceed and the property changes hands to 3^rd parties, their appeal will be rendered nugatory.

8. In response, the applicant filed a replying affidavit sworn 12^th October, 2021 stating that the respondents had since vacated from the contested plot vide civil case No 2/2014. That the administrator failed to disclose to the court hearing civil case No 2/14 about the existence of this succession case hence went ahead to mortgage part of the estate property. He averred that the appeal will not be rendered nugatory if the application is allowed and the estate preserved.

9. He further stated that if proceedings are stayed, then an order to collect and preserve all assets of the estate should be made.

10.  When the matter came for directions, parties agreed to file submissions. The applicant filed their submissions on 25^th October, 2021 through the firm of Dola Magani and company advocates where the applicant reiterated averments contained in the affidavit in support.  Mr Magani contended that the respondent had no   locus standi to institute civil suit No 2/2014 having not obtained a grant of letters of administration. Counsel went further to urge that the learned judge who heard civil suit No 2/2014 had not jurisdiction as the issue in controversy was an ELC issue not family Division issue.

11.  Learned counsel submitted that the applicant has established a prima facie case to warrant stay of the   proceedings herein in that the appeal is arguable. As to whether the application was filed expeditiously, counsel opined that the application for revocation was filed in August, 2021 and their application filed on 28^th September, 2021.

12.   It was counsel’s submission that sufficient cause has been established to warrant stay of proceedings as the issue of presumption of marriage is the subject of appeal as well as the revocation application.

13.   On his part, the respondent filed his submissions on 8^th November, 2021 through the firm of Odhiambo who adopted the content in the affidavit in reply. Principally, counsel submitted that there will be no prejudice in hearing and determining the application for revocation as the issue of marriage between the deceased and the respondent was settled by the high court.

14.   That the issues raised in submissions by the applicant were issues to be canvassed before the court of appeal. That all the authorities cited were in furtherance of an argument which should be preserved for the appellate court.

15.   I have considered the application herein expressed to be filed vide Section 59, rule 73 of P&A rules and Article 159 (1) of the Constitution. The only issue that arise for determination is; whether there are good grounds to stay this proceeding.

16.  As stated, the application is anchored basically on two provisions under the Law of Succession Act which are general provisions giving the court inherent powers to make any orders for the ends of justice to be met even where there is no specific provision governing issuance of certain orders under the Law of Succession. It is trite that there is no specific provision governing stay of probate proceedings under the law of succession.

17.   However, the absence of a specific provision for stay of proceedings in the succession Act does not take away the inherent and discretionary powers that this court has to make any orders that will make the ends of justice meet. See Global Tours and travel Ltd Nairobi  HC winding up cause No 43/2000 where  court held that;

“as I understand the law whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice ...The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such facts as the need for expeditious disposal of cases, the primafacie merits of the intended appeal in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the appeal has been brought expeditiously”

18.  Similar position was held in the case of Christopher Ndolo Mutuku and another Vs CFC Stanbic Ltd (2015) e KLR. Ordinarily, an order for stay of proceedings should be granted only on rare and exceptional circumstances. It should not apply if the suspension of proceedings is anchored on frivolous and flimsy grounds intended to frustrate or delay the expeditious disposal of the case.  Whether to grant or not grant stay of proceedings will depend on the merits of each individual case. See David Morton Silverstein Vs Atsango Chesoni Civil Appeal No Nairobi 189 of 2001 ( 2002) KLR 867 ( 2002) EA 296 where the court  made reference to the holding  in Kenya Commercial Bank Ltd Vs Benjoh Amalgamated Ltd and another civil appeal  No Nai 50 of 2001 in which the court held that the   law  does not  bar stay of proceedings  perse but rather  what matters are the facts of the individual case

19.  In the instant case, there is no dispute that the high court in civil suit No 2/2014 presumed a marriage between the deceased and the respondent on account of long period of cohabitation. It also found that the suit property belonged to the respondent and ordered vacant possession. It is also not in dispute that there is an appeal pending before the court of appeal challenging that judgment.

20. The main ground cited for the application for revocation by the respondent is that he was not consulted as a husband to the deceased.

21. What will be the subject of determination in the revocation application? Obviously, the issue of marriage will crop up again hence the issue of dependency. To avoid a multiplicity of litigation over the same subject, prudence demands that this proceedings do remain in abeyance to await the court of appeal decision which will settle with finality the core subject of marriage between the deceased and the applicant.

22.  It will be in the interest of both parties to have the property preserved pending the court of appeal decision. I do not find any prejudice if the estate is preserved pending the outcome of the appeal. In any event the respondent is already in occupation of the suit property in civil suit No 2 /2014.

23.  As to regards the question of lack of jurisdiction by the high court in civil suit No 2/2014 and the wrong application of the law by the court, that is for the court of appeal to decide and not for this court.

24.  Since there is an injunction order in place, the same shall remain in force until further orders from the court. Whether the appeal is arguable or not, one has to consider the grounds of appeal in this case, the application of the law on the presumption of marriage which is on a primafacie basis raises an arguable case before the court of appeal.

25.   In my view, the court will be embarrassed if it proceeded with the revocation application and then the court of appeal makes opposite orders. It will be a waste of judicial time to start re-hearing the application for revocation a fresh to align with the court of appeal holding in case it does not agree with the outcome in her revocation applicant.

26. In a nut shell, it is my finding that, primafacie, the application has merit and the same is allowed pending the outcome of the pending court of appeal case No.27 of 2020 against the judgment of civil suit No 2/2014. Regarding costs, same shall be in the cause.

Dated signed and delivered virtually at Mombasa this 18^th day of March, 2022.

J. N. ONYIEGO

JUDGE