[2022] KEHC 1566 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MISCELLANEOUS APPLICATION NUMBER 33 OF 2016

ELIZABETH WANJIKU NJOKA

(Suing as the legalrepresentative of ALICE KAHAKI NJOKA (Deceased)......PLAINTIFF

-VERSUS-

JUMA KIPLENGE

(Sued as the Legal Representative ofPhilip Njoka Kamau (Deceased).....1ST DEFENDANT

TERESIA NJERI............................................................................................2ND DEFENDANT

MARGARET DAMAT...................................................................................3RD DEFENDANT

LUCY WANJIRU...........................................................................................4TH DEFENDANT

JAMES GICHERU.......................................................................................5TH DEFENDANT

PETER NJOROGE...................................................................................... 6TH DEFENDANT

GILBERT KABAGE T/A PATA AGENCIES.............................................7TH DEFENDANT

JOSEPH NJUGUNA NJOKA......................................................................8TH DEFENDANT

SOMOIRE KEEN..........................................................................................9TH DEFENDANT

FAMILY BANK LIMITED........................................................................10TH DEFENDANT

SAMUEL GITIMU......................................................................................11TH DEFENDANT

ERIC KAMAU............................................................................................12TH DEFENDANT

PINKAM HOLDINGS LIMITED.............................................................13TH DEFENDANT

RULING

(Objection to production of documents by plaintiff)

1. This ruling is in respect of an objection to the production of a leaving certificate of PHILIP NJOKA KAMAU (DECEASED) whose estate and the estate of his deceased wife ALICE KAHAKI NJOKA are the subject of these proceedings.

2. The plaintiff ELIZABETH WANJIKU NJOKA, who is the witness in the dock and who seeks to produce the said document is the daughter of the two deceased persons, and the administrator/ Legal Representative of the estate of her mother after being duly appointed as such in Nakuru High Court Sucession Cause No.16 of 1984: In the Matter of the estate of Alice Kahaki Njoka (Deceased). The 1st defendant JUMA KIPLENGE is the executor of the will of her father in Succession Cause No. Re: Estate of Philip Njoka Kamau.

3. On 4th November,2021 while being led in examination in chief the plaintiff sought to produce among other documents a document described as a school leaving certificate of her father.

4. Mr. Waiganjo Advocate appearing for the 1st, 6th , 7th, 8th & 11th to 13th defendants, Mr, Ndolo Advocate for the 3rd & 4th defendants and Ms. Magana for the 2nd & 5th Defendants objected to the production of the same. Mr. Kanchori & Kipkoech appearing for the 9th & 10th Defendant chose not to add to the submissions either way.

5. Mr. Waiganjo’s objection is that the plaintiff has not laid any foundation on how she accessed the said document, yet his client, Mr. Juma Kiplenge is the executor of the will of the late Philip Njoka Kamau, and is required by law to have all the documents relating to the deceased person. That he has instructions that the deceased person’s office was broken into and documents stolen. That the witness is not the maker of the document.

6. Ms Magana added that the document was illegally obtained and the plaintiff had not established how she came to be in possession of the same.

7. Mr. Ndolo added that the plaintiff did not have the legal authority to produce the document as she was not the legal representative of the estate of Philip Njoka Kamau and she had to establish how she had come into possession of the document.

8. In response Dr. Kuria SC for the plaintiff submitted that the plaintiff was the Legal Representative of the estate of her mother, who was the spouse of Philip Njoka Kamau and upon the demise of her mother, and her appointment as the Legal Representative she took possession of all properties which included papers, titles, concerning her mother’s estate. Secondly as a child of the deceased she had a right to her father’s memorabilia, documents concerning the memories of her parents, and the father’s school leaving certificate was part of that.

9. That the case concerned the separation of the mother’s estate from the father’s estate, and during their life time any of them was entitled to custody of the property, documents, whether registered in the name of one person or the other. That as the personal representative of her mother the plaintiff was entitled to have possession of what her mother was entitled to have possession of, including leaving certificates and title deeds. Secondly that the spouse could claim a superior right to possession of documents that are intended to show how contribution of acquisition of property might have taken place.

10. That the allegation that the documents were stolen had not been substantiated and counsel could not purport to act as witnesses, that no evidence of theft/illegality had been placed before the court. That Section 35 of the Evidence Act allowed for the evidence of a deceased person to be produced by the living.

11. Further, that the plaintiff had no objection to any enquiry as to how she had obtained the document, and that in a domestic situation, it did not matter whether the document was produced by the plaintiff or the executor.

12. In his rejoinder Mr. Waiganjo pointed to the unusual nature of this case, that the dispute is between the administrator of the estate of the lady and the executor of the will of a gentleman both of whom were married. Each is represented separately; each wants their issues determined separately and hence it cannot be said that the person who has sued the Executor of the estate has the document of the estate of the deceased whose estate the defendant is the Executor. That the Leaving Certificate is a personal document that ought to be with the Executor of the estate of the owner.

13. On the issue of memorabilia, Mr. Waiganjo submits that the plaintiff is not the only child of the deceased to have his memorabilia. That the fact that the plaintiff is before court to establish the boundary between her mother’s estate and the estate of her father, negates any authority on her part to produce any document relating to her father and his estate.

14. Ms. Magana added that if the plaintiff was producing the Leaving Certificate of Alice Kahaki Njoka there would be no problem That the plaintiff was in illegal possession of the documents of the estate of Philip Njoka Kamau, contrary to Section 45 of the Law of Succession Act and there was no exception including memorabilia. That the fact that the executor had made the allegation that there had been a break into the offices of the estate of Philip Njoka Kamau and documents stolen from therein cast a shadow on the plaintiff’s possession of documents belonging to Philip Njoka Kamau. She referred the court to the case of Okiya Omtata Okoiti vs Attorney General & 4 others [2020] eKLRon the proposition that evidence obtained illegally was not admissible.

15. She urged the court to make a determination on the issue of the plaintiff’s possession of documents belonging to the estate of Philip Njoka Kamau.

16. Mr. Ndolo added that the plaintiff had the duty to surrender all documents relating to the estate of Philip Njoka Kamau to his legal representative. That she was not the owner of the said document and the one she was trying to produce was not in the name of Alice Kahaki, she could not produce it.

17. From the foregoing several interrelated issues arise for determination: whether the plaintiff has established how she obtained the document among others, whether it matters not who produces the document whether herself or the legal representative of her father’s estate, whether the objection by counsel to the production of the leaving certificate of Philip Njoka Kamau and any other documents relating to his estate, by the plaintiff, is sustainable.

18. It is not in dispute that the dispute herein is between the estate of Alice Kahaki Njoka and that of her husband Philip Njoka Kamau. It is common ground that each estate had a legal representative, the plaintiff is the legal representative of her mother’s estate, her father’s estate is representative by the 1st defendant. The whole dispute is set around the separation of the two (2) estates.

19. It is therefore clear that the plaintiff’s case is to draw a boundary between the estate of her mother, and the estate of her father. It is a fact that her mother pre-deceased her father, and what entails their respective estates is a highly contested issue. I agree with Mr. Waiganjo, that indeed this is an unusual matter, where the deceased’s couple is engaged through their respective estates in matrimonial dispute to determine their share of property acquired during their marriage. The estate of Alice Kahaki Njoka accusing that of Philip Njoka of taking over and disposing of her property as if it was all his, without any consideration of her contribution...

20. This fight is being carried through their personal representatives. Section 2 of the Law of Succession Act states that a personal representative means the executor or administrator as the case may be, of a deceased person.

21. Section 79 provides that the property of deceased to vest in the personal representative.

“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”

22. Hence from the date each, the plaintiff and the 1st defendant were issued with their respective grant, each became the personal representative of the respective deceased persons, for all purposes of the grant.

23. The question then becomes, can the plaintiff be in the rightful possession of property that belongs to Philip Njoka Kamau, yet she is not his personal representative? More so, can she purport to produce his document in a suit like this one where she accuses him of committing fraudulent acts against her mother’s estate?

24. Here the issue as to how she came to be in possession of the documents belonging to the estate of her deceased father rises up for determination. In her testimony of 21st June 2021, she told the court that her father married Winnie Waithera (deceased) the mother to the 11th and 12th defendants and moved into her mother’s house on Githunguri/Githunguri/3047. Following complaints from herself and her siblings their father built a house for Winnie on Githunguri/Githunguri/3050 where he moved with her. It is the plaintiff’s testimony that after her father’s death, the 11th defendant found two brief cases of documents which he handed over to her sister one Irene Wanjeri Njoka because ‘they felt the documents did not relate to them, they did not want the two brief cases in their house.’

25. The 11th and 12th defendants are represented by Mr. Waiganjo who has raised this objection on behalf of his clients. That position by the plaintiff is disputed and in any event she says that two brief cases of documents were handed to her sister, not to her. She cannot vouch for the manner in which the documents were obtained.

26. In any event the case of Okiya Omtata and 2 others vs the AG and 4 others (above)cited by counsel the Court of Appeal relying on Njonjo Mue & Another vs. Chairperson of Independent Electoral and Boundaries Commission & 3 Others[2017] eKLRconfirmed that theillegally obtained evidence was not admissible in our courts as the prevailing position had been done away by Article 50(4) of the Constitution.

27. In the circumstances of this case and clearly even on the face of it there is what I can only refer to as a clash. What the plaintiff considers to be her mother’s estate can only be exclusive to what she considers to be her father’s estate, to her the two are like water and oil, and cannot be allowed to mix. Hence, even from the point of view of the nature of the suit, and the existence of different personal representatives for the two (2) estates already creates a demarcation, hence, the suspicion that she did not come by the documents belonging to the estate of the deceased father’s estate in a lawful manner. Though this remains a suspicion the fact remains that having come into the possession of the documents she was bound to hand them over to the legal representative of her father’s estate.

28. It can be argued on her behalf that she is entitled to memorabilia of her parents and this specific document amount to memorabilia. The Concise Oxford English Dictionary 12th Edition defines memorabilia thus:

“treated as or objects kept or collected because of their associations with memorable people or events.”

29. One of the arguments by counsel for the plaintiff in support of her capacity to produce the document is that the plaintiff is producing this document to establish how property was acquired. Definitely that removes it from the realm of memorabilia as the document takes off from its revered place to the contested space of this suit and the owner who may be prejudiced by its use in this manner has the right object.

30. Again from the pleadings before this court it is evident that the description of memorabilia by the plaintiff would not fit with respect to her father’s documents, In addition she claims that a suit case containing these documents was handed to her by a third party, who had not been retaining the same as memorabilia but who it is claimed got it from the 11th defendant. Hence, nothing has been placed before this court to show that the plaintiff holds or keeps any of her father’s documents/items as memorabilia and that the document before court is one of them. Her own evidence negates that submission.

31. Without any evidence of a criminal investigation with regard to the alleged theft of the documents from the office of the estate of Philip Njoka Kamau, I would prefer to leave that here save to state that in the event that that is established, then any documents so produced would definitely face the fate of the law.

32. Section 35 of the Evidence Act requires that the maker of the document be called to testify, and I agree with Dr. Kamau Kuria SC that if the maker is dead, then the document is produced by the living. However, the living must demonstrate their relationship with the document for them to be allowed to produce it, for the plaintiff herein her relationship with documents belonging to her father’s estate is such that she would not be the rightful person to produce the same.

33. Section 82 of the Law of Succession Act provides for the powers of a personal representative, they include (a) to enforce, by suit or otherwise, all causes of action which by virtue of any law, survive the deceased or arising out of his death. This is a matter arising out of the death of this couple and each personal representative exercises the same powers the deceased would have exercised. Taken into that context Philip Njoka Kamau would not have allowed Alice Kahaki Njoka to produce his documents in support of her case against him or vice versa without raising an objection

34. In the light of the forgoing, can the plaintiff produce the deceased’s School Leaving Certificate? The answer is a clear. no. She is not the owner of the document, and even if she was to wear her mother’s shoes, she would still not be able to produce the document, because her father has his own personal representative, who ought to have possession of that document, and who it is that has the legal authority to have possession and do with it what the deceased would have done with it.

35. In the circumstances the objection is sustained.

36. The plaintiff has no legal authority to possess or produce documents belonging to the estate of Philip Njoka Kamau.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 11TH DAY OF MARCH, 2022.

MUMBUA T. MATHEKA

JUDGE

In the presence of: -

C/A Edna

Dr. Kamau Kuria SC for plaintiff

Mr. Waiganjo for 1st, 6th, 7th,8th, 11th 12th & 13th defendants

Mr. Ndolo & Muriithi for 3rd & 4th defendants

Mr. Kanchori for the 9th defendant

Ms. Magana for the 2nd & 5th defendants

Mr. Kipkoech for the 10th defendant

Mr. Kioko for Christine & Johnson