Kiema & another v Kiema & another

iii. Pending the lodging, hearing and determination of the Applicant’s intended appeal, there be a stay of execution of the Ruling and Orders of the Hon Justice R.K Limo in Kitui Succession Cause No. 214 of 2015 delivered on 7th May 2024.” 2. Solomon Ibea Kiema and Samson Mwathi Kiema are the respondents. 3. The application is premised on the grounds on the face of it and the supporting adavit sworn by Henry Ithea Kiema (the 1st appellant) on 17th May 2024. 4. The said grounds are that the applicants led summons for rectication of the Grant and review of the Conrmation of Grant dated 6th September 2021 in Kitui Succession Cause No. 214 of 2015 seeking orders inter alia, for the rectication of grant of letters made to Solomon Ibia Kiema, Samson Mwathi Kiema, Henry Ithea Kiema and Ann Mumbi Hinga on the 19th January 2019, so as to reect the correct date on which the grant was made, that the court be pleased to review, set aside and/or vary the order of court conrming the grant herein and order that a fresh approved list of distribution of assets and/ or the properties of the deceased herein be redrawn with the involvement of the four administrators, and, that the court be pleased to issue such other orders as it may deem just and necessary for due preservation of the Estate of the late Joyce Mwihaki Kiema (deceased). 5. On 7th May 2024, the learned Judge delivered his ruling on the application, whereupon he allowed the prayer for rectication of the date of issuance of the grant and dismissed the rest of the prayers. Being dissatised with the entire Ruling and Order aforesaid the applicants led a Notice of Appeal against the ruling. 6. The 1st applicant deposes that if the injunction and stay of execution are not granted, the whole substratum of the appeal will be destroyed and rendered nugatory. That it is only fair and just that the execution of the said ruling and order be stayed and an injunction be issued, restraining the respondents from administering the Estate pending the lodging, hearing, and determination of the intended appeal. Also, the balance of convenience weighs in favor of the applicants, and no prejudice will be visited upon the respondents if the prayer for an injunction and stay is granted. 7. This application originates from Succession Cause No. 214 of 2015, that the applicants led on 6th September 2021, seeking rectication of grant, review of conrmation of grant and any orders the court may deem just and necessary for the preservation of the estate of the late Joyce Mwihaki Kiema (deceased). Upon consideration of the question as to whether the distribution of the estate will render some assets unviable economically, the court observed that the applicants were duly served with the summons for conrmation of grant dated 17th September 2019. Also, that they were well represented by counsel who conrmed to the court that they had been served a year prior to 6th October 2020 and had not led a protest. 8. The court found no basis had been laid to grant any conservatory orders. Save for the rectication of the date of issuance of the grant from 29th January 2018 to reect the correct date of 19th January 2019, the other prayers failed and were disallowed. 9. The respondents did not le a replying adavit to this application and neither party led submissions. When the application came up for hearing on 10th September 2024, Mr. Hilary Cheboi, learned counsel appeared for the applicants. There was no appearance for the respondents although duly served. 10. Mr Cheboi made brief oral highlights. He urged that the Memorandum of Appeal raises bonade issues, including that the applicants who are the administrators of the estate, were not given notice https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1952/eng@2024-12-20 2

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of the hearing for Conrmation of Grant. Further, that the mode of distribution as proposed by the respondents and approved by the court renders parcels No. Kyangwithya/Miseweni/1401 and Kwangwithya/Mutune/ 977, uneconomically viable. 11. The arguments as can be gleaned from the grounds of the motion and the replying adavit are that on arguability, the process leading to conrmation of the grant was vague since the applicants, despite being administrators, were not given notice. That the mode of distribution, as proposed by the respondent and approved by the court renders the parcels uneconomically viable. The applicants also urged that despite clear and compelling evidence submitted by the applicants, which demonstrated the necessity for issuance of such preservation orders, the Judge concluded that there existed no justiciable grounds for granting orders for the preservation of the estate of the deceased. Lastly, that the Judge failed to consider the applicants evidence and material and the facts and correctly apply the law. 12. On the nugatory aspect, the applicant urges that if thestay is not granted, the respondents will proceed to administer and eect the distribution of the estate of the deceased prejudicing the applicants, particularly the 1st applicant who has been living in the property known as Kyangwithya/ Miseweni/1401 all his life. Also, that the respondents who have established homes in properties inherited from the estate, seek to disinherit and /or evict the 1st applicant from the only place he has known as home his entire life. The applicants posited that the respondents’ mode of distribution of the estate of the deceased as proposed, will not only prejudice the applicants but will adversely aect the family history and its cultural heritage, a position that the deceased would not have envisioned. 13. We have looked at the application, the grounds in support thereof, and the law. To succeed in an application made under rule 5(2)(b) of this Court’s Rules, an applicant must satisfy the twin principles namely: that he has an arguable appeal; and secondly, that absent stay, the intended appeal or appeal if successful, will be rendered nugatory, see David Morton Silverstein vs. Atsango Chesoni [2002] eKLR. 14. On arguability, this Court in Transouth Conveyors Limited vs. Kenya Revenue Authority & Another [2007] eKLR, observed that a single point will suce and that an applicant need not establish a multiplicity of arguable points. Neither is the applicant required to show that the ground will succeed. 15. An appeal is said to be arguable when it contains grounds, points or issues that can genuinely be asserted, on which there can be divergent legal or factual positions of some merit worthy of juridical investigation and determination. See- R.F.S vs J.D.S (2013) eKLR. 16. In the present application, the applicants argue that they were not notied of the process leading to the conrmation of grant and that the mode of distribution proposed by the Respondents will render the parcels of land they each individually own uneconomically viable. In our view, these are not idle arguments, and we are therefore satised that the intended appeal is arguable. 17. The second limb is whether the intended appeal will be rendered nugatory. The applicants’ main concern is that if the distribution proceeds their portion will be rendered uneconomically viable, so that, should the appeal succeed, it will be rendered nugatory. However there is no immediate threat of eviction since both the applicants and the respondents reside on the same parcel of land. Guided by this Court’s decision in Stanley Kangethe Kinyanjui vs Tony Keter and 5 others, CA. No. 31 of 2012, this Court dierently constituted stated as follows: “ …whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1952/eng@2024-12-20 3

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18. This Court has not been told that there is no other means of compensating the applicants from the estate, if indeed they are prejudiced by the mode of distribution. We are therefore not satised that the appeal will be rendered nugatory if it succeeds. 19. The applicants are required to satisfy both the limbs and having failed to satisfy the second limb on the nugatory aspect, the requirement under Rule 5(2)(b) of this Court’s Rules has not been met. Accordingly, the Notice of Motion dated 17th May, 2024 is found to lack merit and is hereby dismissed. There will be no orders as to costs since the respondents led neither response to the application nor submissions and they also did not attend Court for the hearing. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024 F. SICHALE ………………………… . JUDGE OF APPEAL ALI-ARONI ………………………… .. JUDGE OF APPEAL L. ACHODE ………………………… .. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1952/eng@2024-12-20 4

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