[2021] KEHC 4157 (KLR)

IN REPUBLIC OF KENYA

THE HIGH COURT OF KENYA

AT NYERI

CIVIL APPEAL NO. 4 OF 2018

DANIEL NDUNGU MWANIKI

CECILIA WANJIRU MWANIKI.....................................................APPELLANTS

VERSUS

BEATRICE WAMBUI SAPRO.......................................................RESPONDENT

JUDGMENT

1. This is an appeal arising from the Ruling of Hon. R. Kefa delivered on 1/10/2018 in Nyeri Succession Cause No.190 of 2016; the respondent petitioned for Letters of Administration to her late father’s estate with the blessings of all her siblings who had given her the requisite consent she was issued with the Letter of Administration on 21/11/2016.

2. The appellants objected to the mode of distribution and proceeded to file their protest against the Confirmation of the Grant, they were directed to canvass their application by way of written submissions. Only the appellants submissions were filed and the trial court distributed the estate in accordance with the appellants proposal as their submissions were uncontroverted.

3. Being aggrieved by the said decision, the petitioner/respondent moved the court seeking the setting aside of the orders granted on 17/09/2018 and all other consequential orders and prayed that the trial court take into consideration her written submissions and rewrite the ruling. The trial court granted the respondent’s prayers by dismissing the appellants protest and the summons for the confirmation of the Grant was allowed.

4. Being aggrieved with the trial court’s decision the appellants instituted this Appeal and the grounds of appeal as summarized hereunder;

i. The trial court erred in disregarding the procedural law and misdirected itself on the law and arrived at a wrong decision thus causing gross injustice to the appellants;

ii. The trial court in its Ruling of 1/10/2018 completely disregarded the weight of the evidence adduced by the appellants.

5. The parties were directed to canvass the appeal by filing and exchanging written submissions, hereunder is a summary of the respective rival submissions;

APPELLANTS’ CASE

6. The appellants submitted that the suit property THEGENGE/KIHORA/xxxwas held in trust by the deceased,

7. The trial court upon rendering its decision on 17/09/2018 became ‘functus officio’ and could not rewrite its Ruling as it purportedly did on 1/10/2018 and submitted that a final decision cannot be re-opened save by way of a right of appeal to a superior body; case law relied on Re.Estate of KinuthiaMahuti(Deceased) (2018) eKLR; and RailaOdinga vs IEBC & 3 Others (2013) eKLR.

8. The protest was based on the existence of a trust over the subject property and ought not have been canvassed by way of written submissions as the matter touched on African Customary Law and ought to have proceeded by way of oral evidence as provided under Rule 64 of the Probate and Administration Rules; case law In the Matter of Estate of Gerald Kuria Thiara H.C. Succession No. 127 of 1995;

9. In conclusion the appellants humbly urged this court to invoke its powers under Section 78(1) of the Civil Procedure Act where an appellate court has power to determine a case finally and to allow the appeal and that the court adopts the mode of distribution proposed by the appellants in their Affidavit of Protest.

RESPONDENT’S RESPONSE

10. In response the respondent submitted that the appellants being children of the brothers of the deceased were not beneficiaries of the estate of the deceased, they had not even proved that they were dependants of the deceased as guided by Section 29 of the Law of Succession Act. The trial court had explained the manner in which it was seized of jurisdiction to enforce the law, whereas the appellants had not stated which law had been misapplied or misapprehended by the trial court.

11. The claims made by the appellants were unsubstantiated nor had they given any evidence that rebutted or controverted that of the respondent;

12. The respondent submitted that the ruling made by the trial court was sound in law and it should not be disturbed by frivolous appeals and urged the court to dismiss the appeal with costs.

ISSUES FOR DETERMINATION

13. Upon reading the parties respective written submissions these are the issues this court has framed for determination;

i. Whether the trial court was ‘functus officio’ at the time of making its determination on 1/10/2018.

ii. Whether the trial court erred in directly the protest be canvassed by way of written submissions on matters touching on African Customary Law contrary to Rule 64 of the Probate and Administration Rules.

ANALYSIS

14. In considering the appeal, this court is guided by the Court of Appeal in the case of Selle & Another vs Associated Motor Boat Co. Ltd & Another (1968) EA 123; it held that an appellate court will as an appellate court, not normally interfere with a lower court's judgment on a finding of fact unless the same is founded on wrong principles of fact and or law.

Whether the trial court was ‘functus officio’ at the time of making its determination on 1/10/2018;

15. Upon perusal of the court record this court notes that the trial court rendered a final decision on 17/09/2018 based only on the written submissions of the appellants who were the protestors therein. The reasons given for this was that the petitioner/respondent had not filed their written submissions, therefore the trial court stated ‘the evidence submitted by the protestors was uncontroverted.’

16. On the 18/09/2018 the respondent filed an application under Rules 49 and 73 of the Probate & Administration Rules seeking the orders for ‘THAT ends of justice to be met it is only fair and just that the court to re-write its judgment and consider the Petitioner’s submissions.’;

17. The trial court upon being satisfied that the petitioner had complied by filing her written submissions and that the error was on her part, it then proceeded to set aside the judgment delivered on 17/09/2018; in doing so the trial court made reference and relied on the Court of Appeal decision of Richard NchapaiLeiyangu vs IEBC & 2 Others (no citation given); where the court expressed itself as follows;

‘We agree with a number of principles which will further to establish that the Courts discretion to set aside expected judgment or order for that matter is intended to avoid injustice or hardship resulting from an accident inadvertence or excusable mistake but not to assist a person who deliberately seeks to obstruct or delay the course of justice.’

18. The trial court found that the failure to place the written submissions on the court record for the courts consideration was not attributed to the respondent and ‘that it would be unjust and indeed a miscarriage of justice to deny the petitioner an opportunity of being heard…’;

19. This court is satisfied with the reasons given by the trial court for its judicial change of mind and finds that it did not apply wrong principles of natural justice in giving the respondent/petitioner an opportunity to present her case and as such finds no good reason to interfere with the trial courts’ decision.

20. This court has also taken into consideration the appellants’ submissions on the doctrine of ‘functus officio’ and states that a court is functus officio when its judgment or order has been perfected thereafter the court cannot review or alter its decision and any change can only be undertaken by a higher court, the appellants made this allegation but did not demonstrate that the mode of distribution and transmission of the deceased’s estate and been effected; on this doctrine this court is guided by the Supreme Courts observation in the renowned case of Raila Odinga vs IEBC & 3Others (2013) eKLR;

21. For the forgoing reasons the ground of appeal that the trial court was ‘functus officio’ is found devoid of merit and it is hereby disallowed.

Whether the trial court erred in directing the protest be canvassed by way of written submissions on matters touching on African Customary Law contrary to Rule 64 of the Probate and Administration Rules;

22. On this issue the applicable law is found at Rule 64 of the Probate & Administration Rules and it is on the application of African Customary Law and it reads as follows;

‘Where during the hearing of any cause or matter any party desires to provide evidence as to the application or effect of African customary law he may do so by the production of oral evidence or by reference to any recognized treatise or other publication dealing with the subject, notwithstanding that the author or writer thereof shall be living and shall not be available for cross-examination.’

23. Upon perusal of the protests filed by the appellants this court finds that the pertinent issue relates to whether or not the deceased held the subject property THEGENGE/KIHORA/xxxin trust for his siblings and it is this court’s considered view that before a determination be made on the existence of a trust there was need for deeper exploration which could not have been done through affidavits and written submissions. This court is satisfied that this could only be achieved by way of ‘viva voce’ evidence being tendered and tested by cross- examination.

24. This ground of appeal is found to be meritorious and it is hereby allowed.

FINDINGS & DETERMINATION

25. From the foregoing reasons this court makes the following findings and determinations.

i. This court finds that the appeal has merit and it is hereby allowed;

ii. The Ruling dated the 1/10/2018 is hereby set aside, the matter is hereby referred back to the subordinate court for hearing by way of ‘viva voce’ evidence and determination.

iii. The trial court is at liberty to refer the matter to the ELC court for determination of the existence of a trust over Parcel No.THEGENGE/KIHORA/xxx.

iv. The parties are at liberty to apply for further orders;

v. This being a family matter each party shall bear their own costs of the appeal.

Orders Accordingly.

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NYERI THIS 10TH DAY OF SEPTEMBER, 2021

HON.A.MSHILA

JUDGE