[2022] KEHC 11797 (KLR)

Igandu & another v Kagame & another (Civil Appeal 70 of 2019) [2022] KEHC 11797 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11797 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 70 of 2019

LM Njuguna, J

July 20, 2022

Between

Zabedi Igandu

1st Appellant

Dominic Njagi

2nd Appellant

and

Lisper Ndinda Kagame

1st Respondent

John Njeru Mishacck Kagane

2nd Respondent

Judgment

1. The appellants vide a memorandum of appeal dated 19. 11. 2019 have moved this court and have raised three grounds of appeal and which are replicated as hereunder:i)The learned magistrate erred in law in failing to find that the grant was issued lawfully.ii)The learned magistrate erred in law failing to revoke the grant.iii)The learned magistrate erred in law and in fact in failing to consider the appellants’ submissions.

2. Reasons wherefore, the appellants seek for orders that:i)The appellants’ appeal be allowed.ii)The judgement by the trial court be set aside.iii)Appellants’ be awarded costs of the appeal.

3. The appellants’ case is hinged on the summons for revocation of the grant brought under section 76 and dated 28. 02. 2018 and wherein the applicants/appellants moved the trial court for orders for revocation of grant amended on 28. 08. 2017 for reasons that the same was obtained fraudulently by making a false statement and concealment from court of facts material to the case. Further, it was averred that the persons of equal right were not consulted and did not renounce their rights thus the grant was obtained fraudulently. The trial court after having considered the evidence adduced before it by the parties, reached a determination dismissing the application for revocation vide a judgment delivered on 22. 10. 2019.

4. When the appeal came up for hearing, the court directed the parties to file and exchange submissions and wherein the respondents complied while the appellants’ failed to comply with the directions.

5. The respondents submitted that the appellants fully participated in the confirmation proceedings and that there was a consent order signed by all beneficiaries on mode of distribution of the estate. That the beneficiaries were represented by their various counsel on record namely Advocates Victor Andande & Co. and Duncan Muyodi & Co. It was submitted that under the circumstances, it is thus evident that the appellants are essentially asking this court to set aside the aforesaid consent. That the appellants must satisfy the threshold for impugning a consent order. Reliance was placed on the cases of Kuldip Singh Rihal v Jaswinder Singh Rihal [2016] eKLR and Kenya Commercial Bank Limited v Specialized Engineering Company Limited [1982] KLR. It was submitted that the appellants have not demonstrated why this court should set aside a consent judgment. The court was urged to dismiss the appeal.

6. As the first appellate court, it is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. [See the case of Selle & Ano. v Associated Motor Boat Co. Ltd [1968] EA 123]. However, it should be appreciated that an appellate court will not ordinarily interfere with the findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. [See Peter M. Kariuki v Attorney General [2014] eKLR].

7. I have certainly perused and understood the contents of the pleadings, proceedings, ruling, grounds of appeal, submissions and the decisions referred to by the appellant. I have indeed re-evaluated the evidence tendered before the trial court and it is my considered view that the main issue for determination is whether the appeal has merits.

8. The Court of Appeal in Wangechi Kimita & Another v Mutahi Wakibiru [1985] KLR 317; [1986] KLR 578; 1 KAR 977; [1976-1985] EA 229, while citing Sadar Mohamed v Charan Singh [1959] EA 793 expressed itself as follows:“Notwithstanding the contractual effect of a consent order Section 67(2) of the Civil Procedure Act is not a bar to setting aside a Judgement and decree by consent or grounds which would justify setting aside a contact…"

9. With respect to the grounds upon which such a consent would be set aside, the same Court in Flora N. Wasike v Destimo Wamboko [1988] KLR 429 held that it is well-settled law that a consent judgement or order has contractual effect and can only be set aside on grounds which would justify setting aside, or if certain conditions remain unfulfilled, which are not carried out. A consent can only be set aside on grounds which would justify the setting aside of a contract entered into by the parties. In other words, prima facie, a consent order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court, or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.

10. The East African Court of Appeal on its part in Brooke Bond Liebig (T) Ltd. v Mallya Civil Appeal No. 18 of 1975 [1975] EA 266 expressed itself as follows:“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them…and cannot be varied or discharged unless obtained by fraud or collusion, or by agreement contrary to the policy of the court… or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement… It is well settled that a consent judgement can be set aside only in certain circumstances, e.g. on the ground of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable the court to set aside or rescind a contract.”

11. From the record, the court notes that the appellants had submitted that they were never actively involved and or consulted in the petition for letters of administration and further, they were not called upon to consent to the mode of distribution as is required by the law. Further that, the consent presented before the court was not signed by them or their representative and that they were not made aware of the hearing date for the confirmation of the grant. That the mode of distribution was unfair and unjust and as such, they urged the trial court to grant their prayer to have the grant revoked.

12. In Hirani v Kassam[1952], 19 EACA 131, the Court of Appeal with approval quoted the following passage from Seton on Judgments and Orders, 7th edition, Vol.1 p.124 as follows:“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the Court..... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the Court to set aside an agreement."

13. Further in the case of Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd(1982) KLR P. 485 it was held that:“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the Policy of the Court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an agreement."

14. In the same case the Court further held that;“An advocate has general authority to compromise on behalf of his client as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding”.

15. From the record, it is quite evident that all the beneficiaries of the estate were listed and further, all were provided for in recognition to the various houses. The 2nd appellant does not deny knowledge of the fact that they (him and his sister) were catered for but instead, desires to know why, given that he is now an adult, the 1st respondent still continues to hold their share in trust and further that, the mode of distribution of the state was not fair and the same is not acceptable to them. That the estate should be distributed afresh given that the same had been obtained unprocedurally and further, that the administrators benefitted by inheriting most of the deceased’s property,

16. As I have noted, the orders of the court dated 28. 08. 2017 were a resultant of a consent dated 31. 03. 2015 by the parties. The contents of the consent are set out as:i)That by consent of all the beneficiaries of the estate of Kagane M’Njiri (deceased), the estate be distributed as follows::ii)LR No. Kaagari/Kigaa /772, measuring approximately 4. 26 acres to be shared by the following: 2. 46 acres to go to John Njeru Misheck Kagane to hold in trust for the family of Misheck Mbaka Kagane deceased.iii)One and a half acres to be inherited by Lisper Ndinda Kagane. (1st respondent).iv)A quarter of an acre to be inherited by Zabedi Igandu.(1st applicant).v)A quarter of an acre to be held by Lisper Ndinda Kagane in trust for the children of Veronica Ciururigi(deceased).vi)LR No. Kaagari/Kigaa /T.316 to go to John Njeru Misheck Kagane to hold in trust for the family of Misheck Mbaka Kagane (deceased) – 2nd respondent).

17. In my view, parties herein (including the respondents), cannot turn around and challenge the consent on the ground that they did not give their consent and that they did not sign the alleged consent. [See Kafuma v Kimbowa 1974 EA (U)]. The grant in my considered view was lawfully issued following the consent entered by the parties herein. As also noted, the 1st appellant was always present during the hearing of the matter and could have objected to the said consent if she was dissatisfied. The 2nd appellant is bound by the same order given that his interests are catered for by the party that hold his share in trust.

18. From the record, it is clear that the appellants are beneficiaries to the estate and that they were provided for but their main complaint is that they are opposed to the mode of distribution that was arrived at, and that is reflected in the consent which was duly entered into by their counsel and with their instructions. [See Court of Appeal in Brooke Bond Liebig v Mallya 1975 E.A. 266].

19. In the obtaining circumstances, could the trial court be faulted for having declined to revoke the grant herein? It is trite that the circumstances under which a grant of representation may be revoked are provided for under Section 76 (a) - (e) of the Law of Succession Act. Under the said section, a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion on the grounds either that the proceedings to obtain the grant were defective in substance; that the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case; or that the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently. These grounds ought to be proved with evidence as the power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. [See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 OF 2000].

20. What is conspicuously clear from the above provision is that when a court is dealing with an application for revocation of grant, it is supposed to consider only the process of obtaining the grant such that issues touching on the process of confirmation of the grant and distribution of the estate amongst the beneficiaries is beyond what the court should consider as it is not covered by section 76 and thus cannot form a basis for revoking a grant but ought to be challenged through a review or appeal. In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, W. Musyoka J after analyzing section 76 and discussing the meaning of a grant within the provisions of the laws governing succession in Kenya held thus;“17. I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.”[Also see the Court of Appeal in Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR].

21. As such, the submissions by the appellants before the trial court to the effect that the grant should be revoked is misplaced.

22. The appellants further contended that their submissions were never considered by the trial court and yet from the records, it is outright that the trial magistrate having taken into consideration submissions by both counsels found that the orders sought before it could not issue and thereafter proceeded to give reasons for the same. Therefore, the appellants’ cannot be heard saying that their submissions were never taken into consideration. [SeeRiziki Fresh Limited & another v JKM (suing next of kin and on behalf of the dependants and the estate of JNK-Deceased) [2020] eKLR].

23. As such, I find that the appeal herein has no merits and it is hereby dismissed with costs to the respondent.

24. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE………………………………………..............for the Accused………………………………………..……………for the State