[2013] KEHC 2941 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

SUCCESSION CAUSE NO. 21 OF 1987

IN THE MATTER OF THE ESTATE OF SAUL MAKWINGWI SONGWA (DECEASED)

BETWEEN

GEORGE W. SONGWA …........................... ADMINISTRATOR/APPLICANT

VERSUS

CHRISTOPHER KHAEMBA .............................. OBJECTOR/RESPONDENT

RULING

This ruling is in respect of the application dated 14th September, 2011. The application is filed by the administrator of the estate of the deceased, George W. Songwa.

The same prays for orders to set aside and/or review consent order dated 14th August, 2004 and a court order dated 16th March, 2009 and that upon granting the prayer, the cause be listed for confirmation of the grant as per another consent order recorded on 6th February, 2009.

The application is based on the following grounds:-

1. That the applicant, who has at all material times been the administrator of the estate, was not a party to the consent, and he had not signed the said consent.

2. That the purported consent was not signed by several beneficiaries and the same was filed secretly on 18th October, 2004 without the knowledge of the applicant.

3. That as at the time when the purported consent was filed, there was a pending objection dated 30th November, 1994 by Christopher Khaemba, the same person that filed the consent of 14th August, 2004 and he has since died.

4. That the consent dated 14th August, 2004 made no reference to the pending objection, or the pending application for confirmation of the grant.

5. That unaware of the consent filed on 18th October, 2004, the applicant on the 5th September, 2008 filed and served an application seeking to have the pending objection struck out.

6. That when the application filed on 5. 9.2008 came up for hearing on the 16th February, 2009, orders were recorded by consent (between the present applicant's counsel and the objector's counsel) to the effect that the present applicant was to remain as the sole administrator of the estate and further that the application for distribution of the estate be proceeded with on 16. 3.2009.

7. That when the matter came up for hearing on 4. 4.2011, it then transpired that there was now an order on record, made pursuant to the purported consent, distributing the estate.

8. That there is a mistake apparent on the face of the purported consent and which warrants the setting aside of the same.

9. That there is “sufficient reason” to set aside and vacate the consent dated 14th August, 2004 and adopted by the court on 16th March, 2009.

10. That the application is further supported by the annexed affidavit of GEORGE W. SONGWA the applicant/administrator.

It is further supported by the affidavit of the Applicant sworn on 14th September, 2011. The same reaffirms all the issues raised in the grounds supporting the application. The Applicant does however adds that the consent order of 14th August, 2004 cannot be deemed as legally valid since he did not sign it. He states that the setting aside of this order will pave way for the distribution of the estate. And that in any event, the Objector has since died.

In opposing the said application, the Respondent named as Peter Saulo Songwa Makwingwi filed Grounds of Opposition dated 3rd December, 2012. He states that he opposes the application on his behalf and that of the parties who recorded the consent on the following grounds:-

(a) The application is fatally defective in both form and substance.

(b) The consent order recorded involved parties who have been served and enjoined as parties to this application.

(c) No grounds have been adduced to warrant setting aside of consent order herein.

(d) No mistake apparent on the face of the record has been cited.

(e) That the estate has been distributed according to the consent of majority of the beneficiaries.

The application was canvassed by way of filing written submissions. The Applicant is represented by the law firm of M/s. Kiarie & Co. Advocates while the Respondent by M/s. Wanyama Wanyonyi & Co. Advocates. The Applicant's submissions are dated 14th January, 2013 and 15th April, 2013. The latter are in reply to the Respondent's submissions dated 13th March, 2013.

I have carefully appraised myself with the respective submissions. Having regard to them and bearing in mind the issues raised in the application and Grounds of Opposition, I have the following to say;

The consent order of 14th August, 2004 outlines the mode of distribution of the estate of the deceased. All the beneficiaries listed thereunder have appended their signatures against their names and entitlements. The same is signed by Christopher K. Songwa, the Objector herein.

The terms of the order are clearly discerned from the order of the court dated 16th March, 2009 and issued on 24th March, 2009. The order adopted the consent order as judgment of the court. It outlines how L. R. NO. KIMILILI/KAMUKUYWA/875 would be distributed among the beneficiaries. It also lists the names of purchasers of portions of the land entitled to them and from whom they purchased them.

Under paragraph 11 of the Supporting Affidavit, the Applicant states that when his application seeking to strike out an objection by the Objector filed on 5th September, 2008 came up for hearing on 4th April, 2011, it transpired that the estate had already been distributed out pursuant to the consent order dated 14th August, 2004, which is subject of this application.

Under this paragraph, the Applicant has referred court to annexture “GWS.2”. This annexture is the order that adopted the consent of 14th August, 2004 as judgment of the court.

I am at loss given this scenario what other distribution of the estate is envisaged by the Applicant if this application succeeds.

I am not clearly able to read what was recorded in court on 4th April, 2011. On this date Mr. Chepkwony was in court holding brief for counsel for the Petitioner. There was no appearance for the Respondent. Mr. Chepkwony did inform court that the matter was listed for confirmation of grant. The court then asked parties to take a mention date in the registry.

My view is that, although per se, no application for confirmation of grant was heard, the estate of the deceased was distributed pursuant to the order dated 16th March, 2009 which adopted the consent order as judgment of the court.

What the Applicant did not however disclose is whether, after the court order adopting the consent order was recorded, the property transmitted to the various beneficiaries and purchasers. But from the diposition in paragraph 11 of the supporting affidavit, the indication given is that this has already happened.

Court's concern at this juncture is what would happen to the portion that was distributed to the Applicant who has since died. But the solution lies with disposal of the pending application seeking to substitute him with Peter Saulo Makwingi.

I note that the Applicant seeks to have the consent order set aside mainly on grounds that:-

- The person who signed the consent is now deceased.

- The result of vacating the order will pave way to the distribution of the estate, and

- There are some beneficiaries who were not provided for in the distribution of the estate.

I have already dealt with the first two issues and I need not repeat myself.

As for the third reason, it is clear from the order of 16th March, 2009, the Applicant sold his portion to Seruya William. The other parties who were purportedly not named as beneficiaries are not disclosed.

But the main question is whether the consent order met the requirements of what a consent order is defined in law. I concur with counsel for the Applicant, following the case of FLORA M. WASIKE -VS- DESTINO WAMBOKO, COURT OF APPEAL AT KISUMU – CIVIL APPEAL NO. 81/1984 “that it is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract or if certain conditions remain to be fulfilled which are not carried out.”

The subject consent order was only signed by one party purporting to represent a myriad of others. Parties who did not sign it, by themselves or their representatives cannot be bound by it.

Therefore, the order of the court adopting the consent as its judgment was an error on the face of the record.

In BROOKE BOND LIEBIG (T) LTD -VS- MALYA (1975) E.A. 266, Court of Appeal held that “a consent judgment may only be set aside for fraud, collusion or for any reason which would enable the court to set aside an agreement.”

A consent, as earlier noted is in the nature of an agreement. The one in question has failed to meet the threshold of a valid agreement and it is only fair that court does away with it.

In the High Court in RATILAL GORA SUMARIA -VS- FINA BANK LIMITED & 2 OTHERS, the court noted that a consent acts as an estoppel. However, it can be set aside on any ground which would invalidate an agreement such as misrepresentation, fraud or mistake.

This applies in the instant case. I have no doubt in my mind that, notwithstanding the good intents for which the consent was recorded and adopted as a judgment of the court, it has failed to meet the threshold of a valid consent.

I disagree with counsel for the Respondent that all parties beneficiary entitled to the estate of the deceased signed the consent and that therefore it should not be vacated. The fact is that the beneficiaries and the purchasers only signed against their names only to confirm that they agree to take their respective entitlements. But at the bottom the signature of the Administrator/Applicant is missing. He is one crucial person that the absence of his consent automatically invalids the consent order.

As to what provisions of the law this application should have been filed under, it is important to note that, generally, matters relating to administration of an estate are governed by the Law of Succession Act, Cap 160 Laws of Kenya.

In the nature of this application the Civil Procedure Act and Rules do not apply. Even where there is no express provision of law to cite, a party may revert to Rule 73 of the Probate and Administration Rules which gives the court the inherent powers to make such orders as may be necessary for ends of justice to be met or otherwise to prevent the abuse of the court process.

In sum, I hereby set aside both the Consent Order dated 14th August, 2004 and the Court's Order dated 16th March, 2009 and issued on 24th March, 2009.

This shall pave the way for hearing of the application dated 4th December, 2012 seeking to substitute the deceased Objector with one Peter Saul Songwa and thereafter the distribution of the property.

Costs to the Applicant/Administrator.

DATED and DELIVERED at ELDORET this 5th day of June, 2013.

G. W. NGENYE - MACHARIA

JUDGE

In the presence of:

Ngelechei holding brief for Kiarie for the Applicant/Administrator

No appearance for Wanyama Wanyonyi Advocates for the Objector/Respondent