[2019] KEHC 996 (KLR)
The court found that the deceased is not a litigant in the current proceedings and that the estate, rather than the individual, is at the center of the dispute. Therefore, the issue of privileged communication between counsel and client does not arise in this context. The documents and testimony of Mbichi Mboroki...
Source-derived case information.
- Citation
- [2019] KEHC 996 (KLR)
- Parties
- Applicant: Dennis Njogu Kamau; Applicant: Fidelis Wambui Kamau; Respondent: Grace Wangari Kamau; Respondent: Kenneth Ng’ang’a Kamau; Respondent: Rose Waithira Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 65 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application to Block Witness
- Outcome
- application dismissed with costs to the respondents
- Judges
- A Ali-Aroni
- Legal Topics
- Succession, Grant Revocation, Child Recognition, Privileged Communication
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Njogu Kamau
Applicant
Fidelis Wambui Kamau
Applicant
Grace Wangari Kamau
Respondent
Kenneth Ng’ang’a Kamau
Respondent
Rose Waithira Kamau
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Block Witness
Legal Issues
- 1 Whether the advocate Mbichi Mboroki should be blocked from testifying as a witness for the applicants on grounds of advocate-client privilege.
- 2 Whether the documents authored by the advocate are admissible and relevant to the determination of the applicants' status as children of the deceased.
Ratio Decidendi
The court found that the deceased is not a litigant in the current proceedings and that the estate, rather than the individual, is at the center of the dispute. Therefore, the issue of privileged communication between counsel and client does not arise in this context. The documents and testimony of Mbichi Mboroki Advocate are relevant to determining whether the applicants are children of the deceased and whether they should be provided for from the estate. The presence of the advocate as a witness is not prejudicial to the respondents, as the deceased is not on trial. Consequently, the application to block the advocate from testifying lacks merit and is dismissed with costs to the...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application to block Mbichi Mboroki Advocate from testifying is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
(FAMILY DIVISION)
SUCCESSION CAUSE NO 65 OF 2009
IN THE MATTER OF THE ESTATE EDWARD KAMAU NG’ANG’A (DECEASED)
DENNIS NJOGU KAMAU............................1ST APPLICANT
FIDELIS WAMBUI KAMAU.......................2ND APPLICANT
VERSUS
GRACE WANGARI KAMAU...................1ST RESPONDENT
KENNETH NG’ANG’A KAMAU............2ND RESPONDENT
ROSE WAITHIRA KMAU......................3RD RESPONDENT
R U L I N G
1. The deceased herein died on the 3rd of December 2007 and a petition for grant of letters of administration filed by his wife, two sons and a daughter on the 15th of January 2009.
2. He was said to have left behind 9 survivors 3 sons, several daughters and a widow.
3. A grant was issued on 4th of June 2009 and confirmed on the 17th of October 2011.
4. By the turn of events on the 19th of June 2017 a summons for revocation of grant was filed by Dennis Njoroge Kamau and Fidelis Wambui Kamau on grounds that the grant was obtained fraudulently by concealment from the court of material facts; as the Applicants who are children of the deceased were disregarded and disinherited.
5. The Applicant’s case is that they were borne of the one Loise N. Mundia. And that they were minors at the time the grant was issued. In support of the their claim they produced their birth certificates bearing names of their parents;, a maintenance support agreement dated 20th June 2002 between their parents and a letter by Mbichi Mboroki Advocate to their late father reminding him of his obligations based on the agreement.
6. The Applicants had sought for a DNA test but later withdrew the application through a consent filed in court.
7. The Respondents who are the children of the deceased, in an application dated 15th May 2019 sought to block Mbichi Mboroki advocate who has been summoned as a witness by the Applicants for the reason that the said advocate is likely to disclose information relating to his association with the deceased and his estate if allowed to testify.
8. In an affidavit sworn by the 2nd Respondent he states that the said advocate generally acted for the deceased and has confidential information regarding him and he cannot now act against the estate.
9. The maintenance and support document indicate that it was made pursuant to a meeting held at Mbichi Mboroki & Co. Advocate, and the said advocate was also a signatory to the said document.
Secondly, Mbichi Mboroki Advocate wrote to the deceased at the behest of the Applicants’ mother Loise N. Mundia, which letter the applicants wish to rely on. The said witness and the agreement are crucial for the applicants’ case.
10. The deceased is not a litigant herein and the issue of privileged communication between a counsel and his client does not arise. The issue before court is whether the Applicants are children of the deceased or not and whether they should be provided for.
11. The court would require evidence as to whether there was a relationship between the deceased and Loise and if so if they sired the applicants and/or any other relevant information that would assist the court to arrive at a justifiable conclusion.
12. Mbichi Mboroki Advocate authored two documents that ate likely to shade more light in this matter, his presence is not prejudicial to the respondent as such. The deceased is not on trial here it is his estate at the centre of a controversy.
13. I see no merit in the application and same is dismissed with costs to the Respondents.
Dated and Delivered in Nairobi on this19TH day of December, 2019
......................
ALI-ARONI
JUDGE