[2013] KEHC 231 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

SUCCESSION CAUSE NO. 21 OF 2011

IN THE MATTER OF: THE ESTATE OF NYAU WANJE WALUNGO (DECEASED)

RULING

Before me are four applications made in respect of the Grant of Letters of Administration issued to Wanje Nyau Mwalungo, Alex Kahindi Nyau, Kaingu Nyau Wanje and Johnson Kazungu Nyau on 5th July, 2011 concerning the estate of the late Nyau Wanje Mwalungo. The grant was issued by my predecessor, Omondi J. On 10th May, 2012 the grant was confirmed pursuant to the petitioners' application. Among the properties listed as comprising the estate of the deceased are two land parcels LR No. CHEMBE/KIBABAMCHE/374 and 362.

Subsequent to the confirmation, an application was lodged by Merry Beach Ltd. for the revocation of the grant on grounds that it was the registered owner of one of the properties namely CHEMBE/KIBABAMSHE/374. This application was compromised through a consent recorded before me on 11th October, 2012 in the following terms:

“By consent the grant issued by the court on 21st May 2012 (date of signing) be amended by deleting plot No. CHEMBE/KIBABAMCHE/374 and another grant be issued to confirm that amendment.”

The said consent was recorded by counsel for the Petitioners Mr. Mayaka and Mr. Ole Kina who was holding brief for Mr. Kinyua Muyaa for Merry Beach. The first application one subject matter of this ruling, was filed on 17th October, 2012 by the petitioners in person seeking to set aside the consent on grounds that it was recorded without due instructions to their advocate.

The second application filed on 29th October, 2012 by Malindi Musketeers Ltd seeks to revoke the grant confirmed in May, 2010, or in the alternative in so far as it relates to LR CHEMBE/KIBABAMSHE/362. On grounds, that the applicant is the registered owner of the said property.

The third application was filed by the Petitioners against Merry Beach Ltd on 14th March 2013 and seeks to restrain Merry Beach Ltd from inter alia “intermeddling, developing, constructing, wasting, or interfering in any manner whatsoever with the land parcel, LR CHEMBE/KIBABAMSHE 374” pending determination of this suit.

The fourth application was filed by Merry Beach Ltd against the Petitioners on 21st March, 2013. In summary, the application is for security for costs amounting to shs. 7,032,000. 00 on grounds that the petitioners are indigent persons and their application dated 17th October, 2012 and 14th March 2013 are “doomed to fail”, but will nonetheless occasion expenditure on the part of Merry Beach Ltd. I note that concerning the petitioner's application filed on 14th March, 2013, no specific orders had been made to have it heard together with the three others. The parties have however filed affidavits and submissions in respect of all the four applications and this ruling will therefore address itself to all the four applications.

It is unnecessary to set out the contentions and postulations made by the respective parties in their affidavits and submissions with regard to the four applications as I will recount these in my analysis of the applications. I propose to deal with the four applications as they relate to the subject matter of the estate of the deceased, namely land parcels CHEMBE/KIBABAMCHE/374 and CHEMBE/KIBABAMCHE/362.

CHEMBE KIBABAMCHE 374

It is trite law that a consent order can only be set aside on the same grounds as a contract. I had occasion recently to deal with a similar issue in Malindi HCC 99 OF 2010 ABDUL AZIZ MOHAMED OMAR -VS- MALINDI WATER AND SEWERAGE COMPANY & COAST WATER SERVICES BOARD. Quoting the quintessential authority of Flora Wasike v Destimo Wamboko [1982-88]1 KLR 625 I stated as follows:

“It is settled law that a consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract for example, on grounds of fraud, mistake or misrepresentation”

The petitioners herein have approached this court asserting that Mr. Mayaka their previous counsel did not have due instructions to record the impugned consent. The law is clear. This court cannot go behind the advocate to investigate the scope of his authority or instructions by his client in an application of this nature. I have looked at the eight grounds cited in support of the petitioners' application of 17th October, 2012. None of the grounds fall within the prescription established in Flora Wasike. It would seem that any remedy they might be entitled to lies elsewhere. Their application filed on 17th October, 2012 is without merit and is hereby dismissed.

10. With regard to the second petitioners' application filed on 14th March, 2013, I do agree as argued by their new counsel Mr. Binyenya that in appropriate cases the court can issue injunctions within a succession cause (see Muriithi J in Mombasa Succession Cause No. 31 of 2006 In the matter of the Estate of Nicola Polcino.) The grounds on the face of the petitioners' application, which are further enlarged in their affidavits are that:

a) There is a pending ownership dispute regarding the suit land - LR CHEMBE/KIBABAMCHE/374

b) That the said property forms part of the estate of the deceased.

c) Merry Beach Ltd. has committed or is committing acts that impinge upon the petitioner's right of ownership.

Firstly, it is undisputed that the suit property is registered in the name of Merry Beach Ltd. and that there has been some disputing over the suit land. The petitioners allege that the title held by Merry Beach Ltd. was nullified or canceled. The documents they have annexed however are not conclusive as they consist of an unsigned schedule of purported “former actual owners” of CHEMBE/KIBABAMCHE Land Adjudication and Settlement Scheme. It is dated October, 2007. Its authorship is not clear.

Considering the sketchy material proferred by the petitioners, it is difficult to find that a prima facie case with a probability of success has been made out. Besides, the key prayer (2) in the petitioners' application filed on 14th March, 2013 appears to be couched in anticipation that the consent of 11th October, 2012 would be set aside. The order of the court rejecting the application to set aside essentially renders that prayer of the Chamber Summons of 14th March 2013 is untenable. This is because there is consequently no outstanding suit as between the petitioners and Merry Beach Ltd.

The petitioners however are not without a remedy. The revocation effected by the impugned consent was partial and limited to the specific plot (374). The petitioners have a valid grant otherwise. They could proceed as administrators of the estate of the deceased to take out proceedings to recover whatever property they believe belongs to the estate of the deceased. As argued by counsel in Merry Beach Ltd. Mr. Muyaa, these particular proceedings (succession) are not suited for that kind of dispute resolution. The chamber summons filed on 14th March, 2013 must fail and is dismissed.

In view of the foregoing, the application for security of costs brought by Merry Beach Ltd. is of no consequence. At any rate, I am not convinced that it has any sound grounding in the circumstances of this case. The dismissal of a party's application only on the basis that they are “men of straw” pursuing a “doomed” cause appears to me an oppressive proposition. It is clear there has been a dispute between the petitioners or others related to them on the one hand, and Merry Beach Ltd. on the other, over the suit property. The petitioners may not have means or even education but there is no evidence that they have deliberately set out to bring vexations or frivolous disputes to the doorstep of Merry Beach. It will be a sad day when courts of law banish sincere though poor litigants from the seat of justice – for the sole reason that their claims are “doomed” apriori. That would not be a judicious exercise of the court's discretion wide as it may be under the Probate and Administration or Civil Procedure Rules. The foregoing is academic however, as the chamber summons filed on 21st March, 2013 as I said, stands otiose.

CHEMBE KIBABAMCHE/361

The final application for consideration is by Malindi Musketeers Ltd filed on 29th October, 2012. Upon a perusal of the supporting affidavits sworn by Daniel Ricci, director of the applicant company, it appears on the face of it that, the suit property was registered in the names of the Applicant since the year 2002. On their part, the petitioners have sought to rely on the self same “register of the former actual land owners” of Chembe/Kibabamche Settlement Section of October, 2007 whose authorship is unknown. Claims that the title in favor of Musketeers Ltd was canceled are not substantiated. These proceedings are not suited for investigation into the bonafides of the title presented here by Musketeers Ltd. As I noted before, the petitioners have already been appointed as administrators of the estate of the deceased. They are at liberty to take out proceedings in respect of any property deemed to belong rightly to the estate which may be in the hands of third parties.

The petitioners raised several legal objections to the application by Musketeers Ltd. Considering the case law cited by Mr. Binyenya on behalf of the petitioners, I am inclined to agree with him that a suit can only be commenced by an advocate on behalf of a limited liability company pursuant to appropriate resolutions of the company. (See Bugerere Coffee Growers Ltd v Sebaduka & Anor 1970 EA 147; Shiawase Ltd & Floriello Davide vs Pianesi Gino [2012] eKLR and Royal Tulia estate Ltd v Davidson Matano & 4 Others [2012] eKLR.

These authorities relate to the commencement of a suit. However as Mr. Kinyua for Merry Beach Ltd. has observed, the Succession Cause was commenced by the petitioners. Merry Beach Ltd and Malindi Musketeers Ltd. came to court pursuant to Section 74 of the law of Succession Act and rule 44 of the Probate and Administration Rules seeking to revoke the grant herein. This suit is strictly not a regular civil suit nor can it be positively stated that the two “objecting” companies have commenced an action in the manner/nature anticipated in the case law above. While I agree that the question of authorization to sue on behalf of a company goes to the heart of the matter itself, I am not convinced that this proposition is applicable in this cause for the reasons given. I hold that Malindi Musketeers Ltd were entitled under the Law of Succession Act and Probate and Administration Rules to enter the proceedings at the point they did, in order to challenge the impugned grant.

Applying my mind to the purport of the application itself and the material placed before me, I am persuaded that while it may be unnecessarily or even unfair to revoke the petitioner's grant in its entirety, the alternative prayer for a partial revocation in respect of Chembe/Kibabamche/362 must be allowed. The confirmed grant issued on 21st May, 2013 will accordingly be rectified/amended to exclude plot LR CHEMBE/KIBABAMCHE/362. The parties will bear own costs in respect of the four applications.

Finally, I regret that this ruling has been delayed as a result of the court's engagement in election petitions which the law mandates be accorded priority.

Delivered and signed at Malindi this 19th day of December, 2013 in the presence of Mr. Kinyua for Merry Beach Ltd.

Court Clerk – John

C. W. Meoli

JUDGE