[2023] KEHC 27188 (KLR)

Gichigi v Gichigi (Succession Cause 2123 of 2007) [2023] KEHC 27188 (KLR) (Family) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27188 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2123 of 2007

PM Nyaundi, J

December 8, 2023

IN THE MATTER OF THE ESTATE OF CHRISTINE WANGECI GICHIGI (DECEASED

Between

Martin Ndegwa Gichigi

Applicant

and

Caroline Wanjiku Gichigi

Respondent

Ruling

1. The Application for determination is dated 20th February 2023 filed by the Respondent, Co- Administrator, Caroline Wanjiku Gichigi, it seeks the following orders;1. This Honourable Court be pleased to review and/or set aside the orders issued on the 10th day of May 2017, specifically the orders freezing account Number 1102149667 held at Kenya Commercial Bank, Moi Avenue Branch and MMF Inflow Account Number 11023697705 custody service Number 24866, Entity Number 33550 held at Old Mutual.2. The beneficiaries of the estate of the late Christine Wangechi Gichigi be allowed unrestricted access to the sums of money deposited in the said accounts at the Kenya Commercial Bank and Old Mutual.3. The Honourable Court be pleased to issue such further orders as it deems necessary for the ends of justice.4. Costs of the application be provided for.

2. The Application is brought pursuant to Section 47 of the Law of Succession Act, Rule 49 and Rule 73 of Probate and Administration Rules and all enabling provisions of Law and was supported by a sworn affidavit by the Respondent of even date.

3. The Respondent, Martin Ndegwa Gichigi opposed the application vide Replying Affidavit sworn on 31st May 2023.

4. None of the parties filed written submissions despite being given several chances to file the same. The applicant sought to rely on the evidence on record.

Background 5. The succession cause relates to the estate of Christine Wangeci Gichigi (hereinafter the Deceased) who died on 4th November 2006. She appointed Ambrose Dickson Otieno Rachier, Paul Otiende Amollo and Jotham Okome T/A Rachier Amollo Advocates as her Trustees. Clause 4 of the will made a provision that the trustees could be changed if the children of the deceased (Martin, Wanjiku, James and Paul) are in agreement.

6. Caroline Wangechi Gichigi and Martin Ndegwa Gichigi petitioned for letters of administration with written will which was issued to them on 28th February 2008. Subsequently, the grant was confirmed on 25th June 2019.

7. By summons dated 24th May 2016, Martin Ndegwa Gichigi sought the following orders against the Respondent;i.Pending the hearing and determination of this application, a freezing order be placed directly at Kenya Commercial Bank of Kenya, Moi Avenue Branch, Account Number 1102149667 in the name of Martin Ndegwa Gichigi and Caroline Wanjiku Gichigi to prevent any further withdrawals.ii.Pending the hearing and determination of this application, a freezing order be placed directly at Old Mutual MMF inflow account number 1102369705 Custody Service No. 24866 Entity No. 33550 of the rent received on behalf of the estate properties from the time of the deceased’s death to date.iii.The Respondent of the above named estate of Christine Wangechi Gichigi be compelled to give a full and an accurate account of the rent received on behalf of the estate properties from the time of the deceased’s death to date.iv.Kenya Commercial Bank be compelled to provide to the applicant or their duly appointed agent up to date certified statements for their Kenya Commercial Bank account, Moi Avenue Branch Account Number 1102149667 in the name of Martin Ndegwa Gichigi and the respondent.v.Old Mutual be compelled to provide to the applicant or their duly appointed agent a full statement of account from the date of account opening to date for MMF inflow account number 1102369705 Custody Service Number 24866 Entity Number 33550. vi.Costs of the application be provided for.

8. Hon. R.E.Ougo LJ delivered a ruling on 16th May 2017 and gave the following orders;1. That a freezing order be and is hereby issued to Kenya Commercial Bank of Kenya, Moi Avenue Branch to prevent any further withdrawal from account number 1102149667 in the name of Martin Ndegwa Gichigi and Caroline Wanjiku Gichigi.2. That a freezing order be and is hereby issued to Old Mutual to prevent any further withdrawal from MMF inflow account number 1102369705 Custody Service Number 24866 Entity Number 33550. 3.That the Respondent of the above-mentioned estate of Christine Wangeci Gichigi be and is hereby compelled to give a full and accurate account of the rent received on behalf of the estate properties from the time of the Deceased’s death to date.4. That Kenya Commercial Bank be and is hereby compelled to provide to the Applicant or their duly appointed agent up to date certified statements for the Kenya Commercial Bank Account Moi Avenue Branch Account Number 1102149667 in the name of Martin Ndegwa Gichigi and Caroline Wanjiku Gichigi.5. That Old Mutual be and is hereby compelled to provide to the applicant or their duly appointed agent a full statement of account from the date of account opening to date for MMF Inflow Account Number 1102369705 Custody Service Number 24866, Entity No. 33550. 6.That the matter be mentioned within 30 days from the date of this relief for further directions on the orders freezing their accounts.7. That the Respondent, Kenya Commercial Bank and Old Mutual shall provide statements as sought within 21 days from the date they are served with the court order.8. That costs shall be in the cause.

9. The Applicant’s case is that court confirmed the grant after the orders issued by the court on 16th May 2016 were complied with. She argued that the court did not address the issue of the frozen accounts. That her advocates inadvertedly omitted to bring this issue to the attention of the court. She deposed that after the grant was confirmed, she travelled to Sweden where her husband lives and was unable to come into the country between 2019 and 2022 because of the covid pandemic. Since she is also a resident in the USA, she incurred expenses to manage the estate thereby incurring debts. She argued that the freezing order hinders the management and final distribution of the estate and there is need to issue the orders sought.

10. Martin Ndegwa Gichigi on the other hand argues that the accounts were frozen because of misappropriation of funds by the Respondent. He deposed that the Respondent has never involved him in the management of the estate after the grant was confirmed. That the Respondent generates and receives income from Dagoretti/Riruta S. 187. Upon request for accounts from the Respondent showing debts and expenses, she has been unresponsive. He deposed that lack of transparency makes it impossible to administer the estate as a co-executor. He asked the court to compel the Respondent to file and serve him with estate accounts since the grant was confirmed.

Analysis And Determination 11. I have looked at the Application, the affidavit in support and against the Application and the written submissions of both parties herein.

12. Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which provides as follows:“- “63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules(1)Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.(2)Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

13. In John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR, the court cited Rule 63 of the Probate and Administration Rules, and then stated as follows:“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly, Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.”

14. It is, therefore, clear that any party seeking review of orders, in a probate and succession matter, is bound by the provisions of Order 45 of the Civil Procedure Rules. 5. The substantive provisions of Order 45, state as follows:“1. (1)Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)…”

15. Order 45 provides for three circumstances under which an order for review can be made. To be successful, the applicant must demonstrate to the court that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. A party may successfully apply for review, secondly, if he can demonstrate to the court that there has been some mistake or error apparent on the face of the record. The third ground for review is worded broadly: an application for review can be made for any other sufficient reason.

16. The Respondent herein grounds her application on the ground that her advocate inadvertedly omitted to inform the court that there was an existing freezing order on the deceased’s accounts. She argued that it is difficult to administer the estate.

17. The application herein was made 4 years later after the grant was confirmed. An application for review should be made without unreasonable delay. The Applicant has not advanced any reason for the delay in the filing of this application. She has also not met any conditions provided for under Order 45 of the Civil Procedure Rules.

18. The court in its ruling of 16th May 2017 compelled the Respondent to give a full and accurate account of rent received on behalf of the estate properties from the time of the Deceased’s death to time. Kenya Commercial Bank was also compelled to provide certified statements in the joint name of the Applicant and the Respondent. Old Mutual Bank was compelled to provide a full statement of account opening to date. The Respondent argued that the Applicant has not complied with the court order compelling her to give a full and an accurate account of rents received. He told the court that the Applicant does not involve him in the administration of the estate.

19. The Applicant on the other hand argues that she and the bank complied with the said orders. I have perused the court file, I have not seen any statements of accounts filed by the Respondent or the two banks. A court does not issue orders in vain. Court orders are meant to be complied with.

20. The Court of Appeal in A.B & Another v R.B, Civil Application No. 4 of (2016) eKLR referred to the decision of the Constitutional Court of South Africa in Burchell v Burchell, Case No. 364 of 2005 where it was held as follows;“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of Law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the Judicial authority of the State in the court and requires other organ of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as instrument to resolve any disputes and may thus impact negatively on the rule of Law.”

21. Further as stated in the case of James Maina Maigua and 2 others v Registered Trustees of the Anglican Church of Kenya [2018] eKLR,“….court orders are not mere suggestions or decorative pieces of fancy court seals. They are orders of the court and must be obeyed.” (emphasize added).

22. The administration of the estate is at an advanced stage as the grant has been confirmed. This is an old matter which should be brought to a finality by distributing the estate to the beneficiaries. The Applicant and the banks are ordered to comply with the court order of 16th May 2017 within 45 days from the date of this ruling.

23. In default the Court in exercise of its mandate under Section 76 of the Law of Succession Act shall revoke the grant to the Applicant.

24. In conclusion the Application dated 20th February 2023 is dismissed. The Applicant toi.Provide a full and accurate account of the rent received on behalf of the Estate properties from the time of the deceased’s death to date within 45 days.

25. In default the grant issued to Martin Ndegwa Gichigi and Caroline Wanjiku Gichigi on 28th February 2008 will be revoked and a fresh grant will issue to Martin Ndegwa Gichigi.

26. Mention on 18th January 2024 to confirm compliance and take directions

27. Each party will bear their own costsIt is so ordered

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 8thDAY OF DECEMBER, 2023. P. NYAUNDIJUDGEIn the Presence of:Ms. Masara h/b for Olala Advocate for the RespondentNalanya h/b Ms Mundia Advocate for the ApplicantSylvia Court Assistant