[2017] KEHC 3115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

SUCCESSION CAUSE NO. 206 OF 2011

In the matter of the Estate of GAKURU GITHAE (DECEASED)

CYRUS GAKURU GITARI………...…....... APPLICANT/PROTESTOR

VERSUS

GRACE WATIRI MAGONDU........RESPONDENT/ADMINISTRATOR

R U L I N G

1. The applicants in his application dated 2/06/2011 seeks for orders of revocation or review and setting aside all the pleadings and orders in Kerugoya SPM Succession No. 80 of 2004 and replace it with orders as the court deems fit. Further that the administrator Grace Watiri be declared an inter-meddler for she has no right to administer her father in law's estate.

2. The grounds supporting the application are that relevant succession was properly filed in Embu High Court as No. 80 of 2004 which court set aside the orders of the High Court and substituted the respondent as the administrator. That the magistrate overlooked the provisions of the Law of Succession Act in regard to substitution of parties and on jurisdiction.

3. The applicant deposes in the supporting affidavit that her late brother Magondu Gakuru and herself were appointed administrators of her late father's estate, the late Gakuru Githae (deceased) in SPM Succession Cause No. 80 of 2004. Upon the death of her brother, the applicant applied to Embu High Court Appeal No. 27 of 2006 for his wife Grace Watiri to be substituted in place of her late husband Magondu Gakuru by her application was dismissed. She made a second application seeking the same prayers which was also dismissed.

4. The applicant now claims that the proceedings in Kerugoya SPM Succession Cause No. 80 of 2004 were defective since the Embu High Court had dismissed the applicant's application. The SPM Kerugoya Court had no jurisdiction to reverse the High Court orders for dismissal of the applicant's applications.

5. It is further deposed that the respondent was appointed administrator of the estate and the grant confirmed. She went ahead to implement the grant and denied the applicant his right of inheritance in the deceased's land L.R. Baragwi/Guama/445.

6. The respondent opposed the application on grounds that this court has no jurisdiction to review its orders. Further that the applicant is asking the court to sit on an appeal on its own orders clothed in a review setting aside orders in this application.

7. It is further deposed that the applications dismissed by the High Court were incompetent and were therefore rightly dismissed. The application for substitution in the Kerugoya court was not opposed by the applicant and he cannot therefore challenge it.

8. Both parties filed submissions through their respective counsels to support their arguments. Mr. P.N. Mugo represented the applicant while the respondent was represented by Wanjiru Wambugu & Co. advocates.

9. The issues arising from this application are as follows:-

(a) Whether this court has powers to review its orders as sought by the applicant.

(b) Whether the Kerugoya SPM Court erred in substituting the respondent in place of her late husband in Succession Cause No. 80 of 2004.

10. The applications dismissed by the High Court were two. The one dated 24/02/2010 sought for substitution of the respondent Grace Watiri in place of her late husband Magondu Gakuru and for stay of proceedings of the Kerugoya Succession Cause No. 80 of 2004. It was dismissed for reasons that it was res judicata, there having been two similar applications that had been dismissed.

11. The earlier application dated 31/08/2010 sought substitution of the respondent in the same Kerugoya case and was heard and dismissed on 17/02/2010 for having been brought under the wrong provisions of the law.

12. The two applications were heard and determined in this case by Wanjiru Karanja, J. The applicant contends herein that the applications were wrongly dismissed. If the applicant was dissatisfied with the rulings of the Honourable Judge, he ought to have appealed to the Court of Appeal.

13. I agree with the respondent that this application for review is a sort of an appeal against orders of a High Court Judge which this court should not entertain. I have no powers to sit on appeal on the said orders.

14. The applicant also seeks to revoke the grant by the Kerugoya Senior Principal Magistrate. The said succession cause was filed in the year 2004 and fully heard with the participation of all the parties concerned. The only issue before the learned magistrate was that of distribution, whether it was to be done according to the two houses of the deceased or according to the number of children.

15. The Magistrate distributed the estate according to houses. Each of the administrators one of which was the respondent was given half share of the land Baragwi/Guama/445 to hold on behalf of their respective houses.

16. For the foregoing reason, the applicant cannot claim to have been disinherited. Being a daughter of the deceased, she ought to have followed her share with the administrator who represented her mother's house.

17. Revocation or annulment of grant is provided for by Section 76 of the Law of Succession Act. Except mere allegations of fraud and lack of jurisdiction, the applicant has not adduced any evidence to prove fraud or defect in the proceedings by the learned magistrate. As I have said earlier, the relevant parties fully participated in the succession proceedings. The applicant has failed to establish any ground for revocation or annulment of the grant.

18. As for the application for substitution before the magistrate, the applicant did not object to the respondent's application to replace her late husband as an administrator. Infact, she had applied for the same orders in her applications in this case that were dismissed. The said order was issued by the learned magistrate in the cause of the succession proceedings which was perfectly in order.

19. At the time this Miscellaneous HC Succession application was filed, the Kerugoya succession cause was in progress having been filed two years earlier. I believe it was wrongly filed and named as a succession cause when it was only a miscellaneous application. The position is that there was only one succession cause No. 80 of 2004. The issues the applicant has raised in this file ought to have been dealt with in the Kerugoya succession cause. This was not an appeal against any orders made by the learned magistrate and it remains unclear for what purpose the applicant filed this application in this court.

20. The applicants counsel in the submissions introduced a new subject not raised in the application. He submitted that the magistrate had no jurisdiction to determine the succession cause since the land was valued at Shs.300,000/= as opposed to the then jurisdiction of a magistrate's court limited to Shs.100,000/=. This was improper for the counsel to bring in a new issue at submission stage which was not supported by any evidence. This court has no option but to disregard the matter.

21. The applicant's counsel relied on two court of appeal authorities on distribution of a deceased's estate. These are:-

(a) Court of Appeal No. 310 of 2000 – Esther Wanjiku Burug Vs Margaret Wairimu Burugu

(b) High Court Succession Appeal No. 4 of 2005 – Patrick Mwangi Gachie Vs Bethiciba Nyambura.

22. I did not find these decisions relevant since this application did not involve the issue of distribution. Even assuming that such an issue had been raised, it would have been misplaced since this court was not hearing an appeal against the judgment of the learned magistrate.

23. A glance at the grant shows that the administrator in the Kerugoya Succession Cause was Cyrus Gakuru Gitari, one of the sons of the deceased. The respondent was later appointed a co-administrator to the estate on 27/06/2011. The applicant herein was not an administrator and lacked the locus standi to approach this court seeking for orders that another party be appointed a co-administrator. Being a beneficiary as she claims, the applicant ought to have pursued her rights in the succession cause at Kerugoya.

24. The applicant sought to rely on Section 159 of the Constitution in justifying the wrong provisions of the law relied on the applications which were dismissed. The Law of Succession Act is the relevant legislation for succession matters. I do not find Section 159 of the Constitution relevant to the facts of this application.

25. As I said earlier, I find no legal basis of reviewing the orders of Wanjiru Karanja, J.

26. I find no merit in this application and it is hereby dismissed with costs.

27. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3rd DAY OF OCTOBER, 2017.

F. MUCHEMI

J U D G E

In the presence of:-

Applicant/Petitioner

Muriithi Gakuru – Beneficiary.