[2022] KEHC 9907 (KLR)

Gichuhi ((Substituted by James Ngugi Kamau)) v Kamau (Succession Cause 10 of 1985) [2022] KEHC 9907 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9907 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 10 of 1985

RN Nyakundi, J

July 7, 2022

In the Matter of the Estate of Kamau Gichuhi (Deceased)

Between

Leak Mukami Gichuhi

Petitioner

(Substituted by James Ngugi Kamau)

and

Monicah Wambui Kamau

Objector

Ruling

1. Before for me are Summons dated 21st October, 2021 in which the Applicant seeks orders that:1)Spent.2)There be stay of execution of the Ruling of this Honourable Court delivered on 17th June, 2020 pending inter-parte hearing and determination of this application.3)The Ruling of this Honourable Court delivered on 17th June, 2020 be reviewed in favour of the Petitioner/Applicant herein or set aside and directions be taken for rehearing of the Respondent’s application dated 10th April, 2015. 4)Costs of the application be granted to the Applicant.

Applicant’s Case 2. The application is premised on the grounds on the face of it and it is further supported by the affidavit of James Ngugi Kamau sworn on 21st October, 2021. The Applicant deposes that the Respondent herein filed a Notice of Motion dated 10th April, 2015 before this Court. That the abovementioned application was heard way of written submissions and subsequently a ruling rendered on 17th June, 2020. The Applicant averred that there is an error apparent on the face of the abovementioned Ruling gleaned from paragraph 7 where this Court held that there was no Replying Affidavit whereas the Applicant had filed a Replying Affidavit dated 18th June, 2015. The Applicant contends that the Court rendered its Ruling without considering the response by the Applicant hence depriving her of the right to a fair hearing.

3. According to the Applicant the Court erroneously ignored the fact that the Respondent had acquiesced to the registration of equal shares with respect to land reference number Eldoret Municipality/ Block 6/95 vide the letter dated 17th March, 2009.

4. The Applicant averred that this Court erroneously ignored the Ruling of the Hon. Lady Justice G.N Ngenye Macharia delivered on 20th March, 2013 that required parties to record a Consent based on the current status of the subject parcel of land. The Applicant further averred that the Hon. Judge overturned and or set aside the decision of Hon. Lady Justice G.N. Ngenye Macharia without a proper application to that effect.

5. The Applicant maintains that there are previous Tribunal and Court decisions confirming that Applicant has an interest on half of the portion of the subject parcel of land and hence it was erroneous for this Court to alter the current status of the said parcel of land without regard to the previous decisions. The Applicant contends that it is imperative to note that the Respondent herein had previously denounced on oath any interest with respect to half of the portion of the subject parcel of land being Eldoret Municipality/ Block 6/95 vide her Replying Affidavit sworn on 28th October, 1988 in Eldoret HCCC No. 121 of 1988.

6. The Applicant averred that this Court erroneously held that consent order issued by the Hon. Justice V.V Patel had been breached at the time of the current registration of the subject land whereas it is evident that the abovementioned Consent order had not made specification in terms of the ratio or percentage of the proprietary interest for each of the parties. The Applicant maintains that it is important to note that the consent order by the Hon. Justice V.V Patel only shared out one shop and the residential premises behind it hence leaving out the other front shop and the premises behind it.

7. The Applicant contends that his later mother died on 16th October, 2019 and hence the abovementioned application was heard and determined after her death without substitution hence occasioning a deprivation of the right to fair hearing. The Applicant maintains that it was erroneous to allow the matter to proceed after the death of his mother and without seeking for her substitution.

8. The Applicant averred that on 2nd July, 2019 this matter was referred to Court annexed mediation and that the Petitioner died while the said mediation was still ongoing. The Applicant contends that it was erroneous for this Court to proceed to write a Ruling before a proper termination of the mediation proceedings.

9. The Applicant averred that he has now obtained grant ad litem and is desirous of being enjoined to substitute his deceased mother, the Petitioner herein in order to protect the interests of her household.

10. According to the Applicant, there is an imminent risk that the County Land Registrar will proceed to cancel the current Certificate of Lease with respect to land reference number Eldoret Municipality/ Block 6/95 on the basis of the abovementioned Ruling. The Applicant maintains that the County Land Registrar has already sought for verification of the orders made pursuant to the abovementioned Ruling demonstrating the imminent risk of the orders being enforced anytime from now.

11. The Applicant averred that himself and other members of the Petitioner’s household will suffer immensely since the enforcement of the abovementioned Ruling will adversely affect their business which is the sole source of their livelihood.

12. The Applicant contends that reversing the process of enforcement of the abovementioned Ruling should the instant application succeed will be tedious and expensive occasioning unnecessary hardship to the parties herein which can be averted by stay of execution of the impugned Ruling. Further the Applicant maintains that there is an imminent risk that the application will be rendered nugatory if the Ruling is enforced before it determination.

Respondent’s Case 13. The application was opposed vide the Replying Affidavit of Monica Wambui Kamau sworn on 12th March, 2022. The Respondent averred that she duly filed the application dated 10th April, 2015 in Court and the Petitioner herein filed her Replying Affidavit to the said application on 18th July, 2015. The Respondent further averred that on 2nd December, 2015 she filed a Supplementary Affidavit in response to the Petitioner’s Replying Affidavit and also filed written submissions on 10th December, 2018 whereas the Petitioner filed hers on 10th April, 2015. The Respondent maintains that the Petitioner herein died on 16th October, 2019 long after both parties had filed their respective submissions to the abovementioned application. The Respondent averred that the Ruling to the said application was delivered on 17th June, 2020 and that James Ngugi Kamau was substituted in place of his deceased mother Leah Mukami Gichuhi, the Petitioner vide the Court orders issued on 17th May, 2021.

14. The Respondent contends that it was the responsibility of the Applicant to ensure that a copy of their Replying Affidavit was in the Court file.

15. The Respondent contends that the issue of shareholding and the alleged letter of 17th March, 2009 was extensively dealt with by Hon. Justice F. Azangalala in his Ruling delivered on 4th July, 2011. The Respondent contends that she did not at any point acquiesce to half share of parcel of land known as Eldoret Municipality/Block 6/95. The Respondent maintains that the Petitioner and her advocates took advantage of her illiteracy. That she was at the time told that the said letter related to the front shops as per the consent recorded before Hon. Justice V.V Patel and not to the whole building. The Respondent averred in light of the foregoing the Petitioner intention was defraud her. The Respondent maintains that she will not sign away the inheritance due to her and her children.

16. The Respondent averred that the orders that were given by Hon. Lady Justice G. N. Ngenye Macharia were that; parties were directed to go back to the drawing board, revisit the Ruling that gave rise to the orders subject of the application or record a consent based on the current status of the two parcels of land. The Respondent maintains that recording a consent disinheriting her and her children is out of the question.

17. The Respondent further averred that the Ruling of 17th July, 2020 did not over turn and or set aside the decision of Hon. Lady Justice G. N. Ngenye Macharia and that on the contrary it was in line with the decisions of Hon. Justice V.V Patel and Hon. Justice F. Azangalala.

18. The Respondent contends that the Court decisions and previous Tribunal decisions in BPTR Case No. 15 of 1998 and ELdoret HCCA No. 117 of 2000 are decisions that touch on one Njoroge Gachuhi (deceased) and the late Applicant’s mother and not between the late Leah Mukami and herself. The Respondent contends that the late Njoroge Gachuhi was not a beneficiary to the Estate of her late husband, the late Kamau Gachuhi and as such issues regarding him cannot affect the Succession Cause herein. The further contends that if the Applicant case is that he is entitled to half of the share that allegedly belonged to Njoroge Gachuhi, then he cannot claim that alleged portion before first taking out letters of administration to Njoroge Gachuhi’s Estate.

19. The Respondent denied having sworn the Replying Affidavit dated 28th October, 1988 and further maintains that she always appends her signature to affidavits and not thumb prints as it appears in the affidavit in question.

20. The Respondent maintains that the Consent order issued by Hon. Justice V.V. Patel still stands and contends that the registration of the suit land in breach of the said consent order was in itself erroneous and fraudulent.

21. The Respondent further denies the allegations by the Applicant that the Petitioner herein was never afforded the right to a fair hearing. The Respondent maintains that before the demise of the Petitioner both parties had filed their responses and written submission with respect to the application dated 10th April, 2015. The Respondent further maintains that it was only the Ruling of 17th June, 2020 that was rendered posthumously.

22. The Respondent averred that the Applicant’s application will not be rendered nugatory as the Consent order has been in existence for the last 36 years.

23. The Application was canvassed by way of written submissions which this Court has read and considered.

Determination 24. Before I delve into the merits of this application. The Respondent herein has raised a preliminary point of law in relation to the Notice of Withdrawal of the application dated 17th July, 2020. The Respondent contends that in view of the said withdrawal and pursuant to the provisions of Rule 14(5) of the Probate and Administration Rules, James Ngugi Kamau has now ceased to be an Administrator in the Estate of the late Kamau Gicuchi. The Respondent submitted that the Applicant herein, James Ngugi Kamau had successfully obtained orders of substitution on 17th May, 2021, substituting his late mother Leah Mukami as an administrator in this instant cause. The Respondent argues that the effect of this Notice of Withdrawal was also to withdraw the order making the Applicant an Administrator to the Estate of Kamau Gichuhi as that was the basis on which he attained the said status.

25. From the record it is clear that the deceased herein died intestate leaving behind two widows and children from the two respective houses. It is further not in dispute that the 1st Petitioner herein Leah Mukami died on 16th October, 2019 leaving with the 1st house with no representative with respect to their interests in the deceased’s estate. I have seen the Notice of Withdrawal dated 18th October, 2021 by the Applicant’s Counsel on record and I am alive to the provisions of Rule 73 of the Probate and Administration Rules that gives this Court inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the Court.

26. It is in the interest of justice that both houses have a representative in this instant cause. I cannot therefore, lock out the Applicant from advancing the interests of the 1st House herein. It is for the above stated reasons that I hereby duly appoint James Ngugi Kamau as a co-administrator to Monica Wambui Kamau in the instant Cause.

27. The only issue that arises for determination in this matter is whether the Ruling of the Court delivered on 17th June, 2020 should be reviewed or set aside.

28. From onset I must mention that the power to review or set aside orders of a court is discretionary one.

29. Order 45, provides for application for review of decree or order.“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) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

30. Order 45 of the Civil Procedure Rules deals with applications for review. The substantive law on review is found under Section 80 of the Civil Procedure Act.

31. In the instant cause, the Applicant contends that there is an error apparent of the face of the said Ruling as to the filing of a Replying Affidavit by the Petitioner. The Applicant’s case is that the said Ruling held that there was no Replying Affidavit to the said application whereas the Petitioner had in fact filed her Replying Affidavit on 18th June, 2015. The Applicant further contends that the Court erroneously ignored the fact that the Respondent herein had acquiesced to the registration of equal shares with respect to parcel of land known as Eldoret Municipality/Block 6/95 vide her letter dated 17th March, 2009 addressed to the firm of M/s Kibichiy & Co. Advocates.

32. The Applicant’s contention is that the Court erroneously made a presumption that the Consent order issued by Hon. Justice V.V. Patel had breached at the time, the current registration of the suit property whereas it is apparent that the above-mentioned Consent order had not made any specifications in terms of the ratio or percentage of the propriety interests of each of the parties.

33. The Applicant has further contended that the Court erroneously ordered the late Leah Mukami Gichuhi to render an account with respect to parcel of land known as Eldoret Municipality/Block 14/5 whereas it was clear that the said subject parcel of land been distributed and sub-divided in the year 1987 as previously held by Hon. Lady Justice G. N. Ngenye Macharia. The Applicant’s case is that the said sub-division and distribution had been done in accordance with the Consent order issued by Hon. Justice V.V. Patel rendering the order in the impugned Ruling incapable enforcement.

34. The Applicant’s contention is that the Court erroneously placed the responsibility to account for the estate solely on the late Leah Mukami Gichuhi whereas the record clearly shows that she was a co-administrator with the Respondent all the way from the year 1985. The Applicant’s case is that the responsibility to account for the estate lies equally with both administrators.

35. The Applicant contends that the Court in the impugned Ruling erroneously devolved into issues that had been previously been determined by the Court and in particular the Ruling by Hon. Lady Justice G. N. Ngenye Macharia. The Applicant’s contention is that the impugned Ruling erroneously overturned the Ruling of Hon. Lady Justice G. N. Ngenye Macharia.

36. The Applicant has maintained that previous Court decisions in Eldoret HCCC No.121 of 1988, Eldoret BPTR Case No. 15 of 1998 and Eldoret HCCA No. 117 of 2000 were not brought to the attention of the Hon. Judge at the time of hearing of the application that gave rise to the impugned Ruling. The Applicant has maintained that these decisions confirmed that the Petitioner has an interest on half portion of the subject parcel of land hence it was erroneous for this Court to alter the current status of the suit property without regard to these previous decisions.

37. From the record that it is indeed true that this Court’s Ruling at paragraph 7 noted that there was no Replying Affidavit in response to the application dated 10th April, 2015. The Applicant has attached to his affidavit a copy of a Replying Affidavit dated 18th June, 2015 which was purportedly filed by the Petitioner in response to the application dated 10th April, 2015. The same has been produced as exhibit JNK2. I have looked at the said affidavit and note that the same is a copy of the alleged affidavit. I am not able to authenticate its origin as the same is just a copy of the original. The Applicant did not produce any receipt of payment as proof that at the time when the Ruling was being made the said affidavit had been duly filed in Court. In view of the foregoing it is my finding that at the time when the Court rendered its Ruling there was no Replying Affidavit on record as alleged by the Applicant herein.

38. I have keenly looked at the other issues being raised by the Applicant in this instant application and note that as much as the Applicant has coined them as errors apparent in the face of the Ruling it is my view that the same are findings made by the Court which the Applicant herein is dissatisfied with.

39. By asking the Court to review the Ruling of 17th June, 2020 the Applicant is indeed asking the Court to sit on its own Appeal or to sit on Appeal against a Ruling of a Judge of concurrent jurisdiction. If the Applicant was aggrieved by the said Ruling, he had an option of filing an Appeal at the Court of Appeal.

40. The Court finds no error apparent on the face of record of the Ruling delivered on 17th June, 2020 to warrant a review of the said Ruling.

41. I further take judicial notice of the fact that this case has taken over 37 years in Court. Some of the deceased’s beneficiaries are dead while others continue to suffer as they wait for their rightful share of the estate of the deceased. Litigation must at some point come to an end.

42. I am inspired by the words of Lord Diplock in Birkett –v- James(1977)2 All ER 801 in which he observed; “That where it has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”It is clear from the above principles the unjustified delay in litigation of claims is to be deplored. Inordinate delay by itself occasions prejudice and injustice which the constitution and enabling statutes cannot remedy to create a right in favour of a litigant. Therefore, in my view inordinate delay places an innocent party to a substantial risk of a fair trial. Loss of time in litigation is incurable even if this court was to respond to the claim despite the delay by the aggrieved party.

43. Accordingly, I find no merit in the Applicant’s application dated 21st October, 2021 and the same is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 7th DAY OF JULY, 2022. ............................R. NYAKUNDIJUDGE