Analysis and determination.
11.I have considered the application, the grounds and affidavit in support and against the application together with the parties’ rival submissions and in my view, the main issue for determination in this application is whether the applicant is entitled to the orders of stay of execution sought.
12.It is not in dispute that this court (FA Ochieng J) delivered a ruling on January 31, 2022 making a raft of orders key among them is the order that the petitioner (respondent herein) is issued with limited grant of letters of administration (ad colligenda bona) for purposes of collecting and preserving the deceased’s assets. The court also ordered that the petitioner files and serves a detailed inventory of the assets of the deceased’s estate in court within 90 days of the order, extending to taking into custody all original documents of title.
13.My reading of the ruling shows that the court’s decision was informed by the fact that the applicant had been found to have irregularly transferred part of the estate of the deceased Luke Owuor Ochido to herself before the grant issued could be confirmed thus the order that the estate be preserved pending certificate of confirmation of the grant is issued in the matter.
14.Having been aggrieved by the orders aforesaid, the applicant now moves this court for orders of stay against the execution and or the implementation of the orders now in force pending the disposal of an appeal she claims that she has preferred to the Court of Appeal where she has filed only a notice of appeal.
15.There is no doubt that there exists a succession cause in relation to the estate of the deceased herein pending confirmation at Maseno Principal Magistrate’s Court. Both parties concede to this fact. However, the court in the ruling now impugned found that despite the pendency of the Succession Cause, the applicant had already transferred part of the properties forming part of the estate of the deceased Luke Owuor Ochido into her names as the sole owner thereof, and that is exactly what the court in the impugned ruling sought to protect from further wastage.
16.As matters stand, the orders issued by this court have not been complied with in what the applicant deems to be disinheritance by the court. She fears that the respondent will execute the said orders with vengeance due to the acrimony between her and the respondent thus the orders of stay of execution being sought.
17.It is trite law that applications for stay of execution are governed by Order 42 Rule 6 of the Civil Procedure Rules which provides that:
18.Courts have severally held that the power to grant an order of stay pending appeal is discretionary as was observed by the Court of Appeal in RWW v EKW (2019) eKLR that:
19.The first question to resolve is that of substantial loss. The application is based on the fact that this court allowed the respondent to collect and preserve the assets of the estate of the deceased to which the applicant is apprehensive will interfere with her peaceful stay in her matrimonial home. It is also a fact that part of the estate of the deceased was irregularly transferred to the applicant’s name.
21.Having perused the affidavit in support of the petition, the order sought to be appealed from was granted with a view to preserving the estate of the deceased which had illegally been transferred to the applicant. That order was aimed at preserving the estate pending the conclusion of the succession proceedings. I do not find any demonstrable loss that the applicant stands to suffer if the respondent executes the orders of the court. In any event, the orders which were issued by F.A. Ochieng J (as he then was) are interim and temporary in nature, intended to forestall the applicant’s illegal actions over the estate. These illegal actions border on intermeddling with the estate of the deceased and for which criminal sanctions apply as stipulated in section 45 of the Law of Succession Act.
22.The next question is whether the appeal is arguable and in my view, this is for the appellate court to determine, assuming that appeal or as intended is competent. It is not in dispute that every party has the undoubted right to prefer an appeal against any outcome he or she deems injurious to her, where the law allows such appeal. However, the respondent also deserves the right to enjoy the fruits of a decision sought to be appealed against, to protect and preserve the estate of the deceased Luke Owuor Ochido until all objections filed in the succession cause are heard and determined on their merits. I will refrain from discussing the merits of the appeal or as intended since the time for such discussion and analysis will come during the hearing of the alleged appeal.
23.Needless to say that this is a court of law and is deemed to know the law. It is also a court of record and its decisions bind the subordinate courts. It must therefore not be afraid of making legal pronouncements which are obvious under the law. Under section 51 of the Law of Succession Act, any party wishing to prefer an appeal from this Court to the Court of Appeal in succession matters must first seek and obtain leave of this court to appeal.
25.In light of the above expositions by the superior Court, whose decisions are binding on this court, there is no way the applicant can exercise her intended appellate right without first of all seeking leave of this Court.
26.I note that neither party in both of their rival pleadings and submissions have given any address on this issue. Lack of such address by the respective parties does not perse preclude this court from addressing the issue as serious as it is a serious point of law which this court cannot just ignore.
28.Therefore, as to whether the applicant sought and obtained such leave and therefore as to whether the appeal as per the Notice of appeal or as intended is competent is a matter for another day. The writing is on the wall.
29.Having resolved the first question as above, I find no need to analyze the other grounds presented by Order 42 Rule 6 of the Civil Procedure Rules.
30.In the circumstances, I find and hold that the application dated March 18, 2022 is found to be devoid of any merit and is hereby dismissed with an order that the applicant shall pay to the respondent costs of this frolicsome application.