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High CourtAllowedMiscellaneous Application dated 2.7.19 (arising from Kwale Succession Cause No. 186 of 2015)

Re Estate of Abdalla Kisinyo (Ash Hamisi Nimutende v Mwaronga Nassoro Nassoro & Another)

High Court of Kenya

24 January 2020

MTM. Thande

1,003 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

If an appeal is necessary to protect your property rights, the High Court can grant extensions and stays even if the initial filing was technically late.

What this practically means

Executive summary

Asha Hamisi Nimutende applied by notice of motion dated 2 July 2019 for leave to file an appeal out of time against the ruling of Hon. Said Hamisi Bedzenga, Kadhi, in Kwale Succession Cause No. 186 of 2015 delivered on 30 October 2018, for the draft memorandum of appeal to be deemed filed, and for stay of execution. She claimed she and her siblings are the sole beneficiaries of their grandfather Abdalla Kisinyo's estate, including property Kwale/Waa/114, but that the 1st Respondent secretly filed the succession cause and obtained title; after she was enjoined, the Kadhi, without any review application, sat on appeal over his own judgment of 15 June 2015 and ordered the property shared equally between her family and the 2nd Respondent. The Respondents did not file a response but opposed stay at the hearing, claiming it had been dealt with, while not opposing leave to appeal out of time. The court held that the Law of Succession Act is a complete code and the Civil Procedure Act provisions invoked were inapplicable, but jurisdiction arose under Section 47 of the Act and Rule 73 of the Probate and Administration Rules. Finding that execution would divide the property and render the intended appeal nugatory, and that the Respondents produced no material supporting their claim that stay had been dealt with, the court allowed the application: the draft memorandum of appeal was deemed filed subject to payment of fees, conditional stay of execution was granted on the Applicant filing and serving the record of appeal within 21 days, failing which the stay would lapse automatically.

Key legal issues

Applicability of Civil Procedure Act provisions to succession appeals

Holding

Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act and Order Rule 6(1) of the Civil Procedure Rules are not applicable in succession matters; jurisdiction rests on Section 47 LSA and Rule 73 Probate and Administration Rules.

Reasoning

The court held the Law of Succession Act is a complete code with its own procedure. Only the Civil Procedure Rules provisions listed in Rule 63 of the Probate and Administration Rules apply, and the provisions cited by the Applicant are not among them. Inherent power under Rule 73 nonetheless sustains jurisdiction.

p. 2

Whether stay of execution should issue pending the intended appeal

Holding

Stay granted conditionally because execution would render the intended appeal nugatory.

Reasoning

The Respondents claimed stay had already been dealt with but placed no material before the court. The Applicant and siblings claim sole beneficial ownership while the Kadhi ordered equal division with the 2nd Respondent; execution would divide the property as ordered, prejudicing the appeal.

p. 2

Legal principles established

The Law of Succession Act is a complete code; Civil Procedure Act provisions are not applicable in succession matters except as imported by Rule 63 of the Probate and Administration Rules.
Section 47 LSA and Rule 73 of the Probate and Administration Rules confer inherent jurisdiction to make orders necessary for the ends of justice.
The purpose of stay of execution pending appeal is to preserve the subject matter so the right of appeal can be exercised without prejudicing an appellant.

Court orders

1.The draft Memorandum of Appeal filed herein is deemed as duly filed subject to payment of the requisite fees
2.Conditional stay of execution granted to the Applicant on terms that the Applicant shall file and serve the record of appeal within 21 days
3.In default, the stay granted shall automatically lapse

On appeal from: Kadhi's Court; Kwale Succession Cause No. 186 of 2015
Jurisdiction invoked: Section 50 of the Law of Succession Act (appeals to High Court from Kadhi's Court in respect of estates of deceased Muslims); Section 47 LSA and Rule 73 Probate and Administration Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Re Estate of Abdalla Kisinyo (Ash Hamisi Nimutende v Mwaronga Nassoro Nassoro & Another)", Case Analysis (2020). Miscellaneous Application dated 2.7.19 (arising from Kwale Succession Cause No. 186 of 2015). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.