[2023] KEHC 25126 (KLR)

In re Estate Ndunda Wambua (Deceased) (Probate & Administration 427 of 2017) [2023] KEHC 25126 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25126 (KLR)

Republic of Kenya

In the High Court at Makueni

Probate & Administration 427 of 2017

TM Matheka, J

November 10, 2023

RE: ESTATE OF NDUNDA WAMBUA (deceased)

Between

Beatrice Ndunge Ndunda

Administrator

and

Nzula Makau Wambua

1st Protestor

Kithome Wambua

2nd Protestor

Boniface Mutuku Ndunda

3rd Protestor

Ruling

1. Ndunda Wambua Nthanze died on 11th April 1995. According to the letter from the office of the Assistant Chief Mubau sub-location dated 8th August 2010 (Ref MUV/BMD/15/Vol.III/17), the following were his family:- 1st Wife Sex Age Relationship

1 Loise Nzilani Ndunda F 89 Wife

2 Boniface Kituku Ndunda M 62 Son

3 Lydia Ndunda F 60 Daughter

4 Martha Ndunda F 58 Daughter

5 Sabeth Ndunda F 56 Daughter

6 Katoko Ndunda F - Daughter

7 Katile Ndunda F 50 Daughter

8 Muinde Ndunda M 48 Son

9 Nduku Ndunda F 45 Daughter

10 Mutindi Ndunda F 43 Daughter

11 Michael Ndunda M 41 Son

- 2nd Wife

1 Beatrice Ndunge Ndunda F 71 Wife

2 Titus Muema M 47 Son

3 John Wambua M 44 Son

4 Munyiva Ndunda F 42 Daughter

5 Mueni Ndunda F 39 Daughter

6 Mulinge Ndunda M 32 Son

7 Mutual Ndunda M 29 Son

2. According to the form P & A5 filed on 23/06/2012 together with the petition for grant of letters of administration intestate his estate comprised of LR. Kathonzweni /Weni /Kwakavisa /145 measuring 6. 84 HA.

3. The grant was made to Beatrice Ndunge Ndunda, the 2nd wife of the deceased on 13th December 2012 and issued on 24th January 2013 in Machakos cause No. 851/2012 – Estate of Ndunda Wambua Nthenge.

4. On 3rd July 2013, the administrator filed summons for confirmation of grant, and listed all the beneficiaries as follows–1 Loise Nzilani Ndunda F Wife

2 Boniface Kituku Ndunda M Son

3 Lydia Ndunda F Daughter

4 Martha Ndunda F Daughter

5 Sabeth Ndunda F Daughter

6 Katoko Ndunda F Daughter

7 Katile Ndunda F Daughter

8 Muinde Ndunda M Son

9 Nduku Ndunda F Daughter

10 Mutindi Ndunda F Daughter

11 Michael Ndunda M Son

12 Beatrice Ndunge Ndunda F Wife

13 Titus Muema M Son

14 John Wambua M Son

15 Munyiva Ndunda F Daughter

16 Mueni Ndunda F Daughter

17 Mulinge Ndunda M Son

18 Mutua Ndunda M Son

5. She annexed a certificate of search and a schedule of distribution to herself of the property Makueni/Mubau/536 registered in the name of Ndunda Wambua.

6. She swore a further affidavit in support of the summons confirming grant seeking to correct the form P&A5 where the estate had been described as Kathonzweni/Kwakavisi/145. She deponed that this parcel of land was registered in the name of deceased’s 1st wife Loise Nzilani Ndunda and was not available for distribution but that it was initially part of the estate – she annexed a certificate of search she deponed that the only property available for distribution was Makueni/Mubau/536 where she and her family resided and that her house hold had consented to the distribution to herself. She urged the court to disregard the affidavit in support of the summons to confirm grant.

7. On 23rd October 2014, an Affidavit of Protest was filed by Boniface Mutuku Ndunda – to the effect that the parcel of land Makueni/Mubau/536 did not belong to Ndunda Wambua his father – but to his grandmother Katave Wambua who had four sons including the said Ndunda Wambua. He deponed that the family had sat and subdivided the land into four portions among the four sons each getting 9 acres, and that each of the two wives of the deceased Ndunda Wambua got 4 ½ acres.

8. Nzula Makau Rhoda, daughter in law of Katave Wambua swore an affidavit on 19th April 2016 April 2018 and 16th in which she confirmed the above position.

9. Kithome Wambua Nthanze son of Ndunda Wambua Nthanze swore an affidavit of protest on 13th April 2018 also stating that his father held the title Makueni/Mubau/536 in trust for his beneficiaries and himself – that the property was divided among all the brothers in 2008 as everyone is settled on their own portions. He sought to be included in the Summons for confirmation of grant to get his 9 acres.

10. In her response filed on 20th June 2018 the administrator denied all the allegations of trust, that the allegations that the land was held in trust by her husband for the rest of the family would have the result of disinheriting the deceased’s family

11. Parties had fixed dates to proceed by way of viva voce evidence on the Summons for Confirmation of the grant and the protests – however on 11th October 2018 the position changed when they agreed to go for mediation by the Assistant County Commissioner and elders, and the award be filed in court.

12. They went.

13. The award was filed on the 13th November 2018 dated 2nd November 2018. It was resolved as follows;ACC Wote Division ResolutionBeatrice Ndunge Ndunda, her sons and James Kisau Wambua are the ones residing on the land in question. Kithome Wambua is not residing on the same hence has no share in it.The children of Nzilani Ndunda should be counted in the land at Kathonzweni where their mother and father Ndunda Wambua were buried.This is based on the elders’ report and the entry in green card of the land in question as (Ndunda Wambua).James Kisau Wambua has got no other land elsewhere like the others and has been residing in this land for many years as they settled there.Beatrice and Kisau should be the rightful heirs on the parcel of land in question since it’s the only land they have and residing from immemorial up to date.Signed Bernard K NicholasAssistant County CommissionerWote Division

14. The Resolution provoked the Notice of Motion dated 25th February 2019 seeking the setting aside of the said award by Nzula Makau Wambua, Kithome Wambua and Boniface Mutuku Ndunda mainly because instead of the parties being heard by the ACC and he elders – It was s the elders who were heard, and the ACC drew his conclusions from there.

15. The issue dragged the matter on till the 16th September 2020 when the parties entered into a consent whereby the arbitral award was set aside, and the matter was now referred to court annexed mediation with respect to the distribution of the two parcels of land: Makueni/Mubau/536, Kathonzweni/Kwakavisi/145.

16. The mediator’s report (Mediation No. 13/2021) was filed on 31st May 2021 to the effect that Makueni/Mubau/536 was to be shared as follows: -1. Ndunda Wambua (deceased)... 12 acresBeatrice Ndunge.... 10 acresBoniface Mutuku ....2 acres (on behalf of first wife)2. Titus Maingi Muoki ....8 acres (for the house of Makau Wambua)3. Kithome Wambua Nthanze... 8 acres4. Ruth Ndunda Kisau..... 8 acres (for the house of Kisau Wambua5. and that Beatrice Ndunge and her family would lay no claim to Kathonzweni/Kwakavisi/145.

17. This mediation provoked the Notice of Motion before me dated 18th July 2023 brought under section 3A and 63(e) of the Civil Procedure Act, order 50 rule 1 of the Civil Procedure Act seeking orders inter alia:1. That this court be pleased to set aside the mediation report dated 31st May 2021 and be pleased to grant any other order it may deem fit in the circumstances.

18. The application is supported by the affidavit of Beatrice Ndunge Wambua. She depones that the mediation process was irregular as the mediator involved 3rd parties – yet the mediation was to be between herself and the protestors; that the 3rd parties involved were Titus Maingi and Ruth Ndula; that the only way out was for her to be heard as she was made to sign a document she did not understand.

19. The application is responded to by the replying affidavit of Kithome Wambua. He explained that the two persons the petitioner cites as strangers represented the protestors who were unable to attend – Titus Makau representing Nzula Makau who was ill, Kisau Wambua is deceased and his blind and sick wife could not attend. That the applicant was present with her children, their advocate Rose K. Mutua was present. That the matter was settled in the following terms:1. Both parties have resolved to settle their land dispute No. Makueni/Mumbau/536 as follows:a.Ndunda Wambua deceased ....12 acres to be sub-divided as follows:i.Beatrice Ndunge Ndunda ...10 acres (Applicant)ii.Bonface Mutuku Ndunda ...2 acres ( On behalf of 1st wife)b.Titus Maingi Muoki ...8 acres for the house of Makau Wambuac.Kithome Wambua Nthanze... 8 acresd.Ruth Ndila Kisau... 8 acres for the house of Kisau Wambua2. Beatrice Ndunge Ndunda and her family have no claim in Kathonzweni/Kwakavisi/145. 3.Both parties have agreed for the boundaries to be affected due to change of sharing of the plot No. Makueni/Mubau/536. 4.Both parties have agreed survey to be done on the plot Makueni/Mubau/536 the soonest possible and the parties to share the cost for survey.5. Both parties have agreed that no one should appeal against the mediation settlement.

20. The deponent is of the view that the application is pre-mature, the report has not yet been adopted as an order of the court, and in any event no reasonable ground has been laid down to demonstrate why the mediation process should be repeated. Annexed to the affidavit is a group photograph of all those who attended the mediation, case summaries by both sides, and the mediation agreement signed by parties and their advocates.

21. In the further affidavit sworn on 8th March 2023 the administrator depones that there is an admission that strangers participated in the mediation, secondly that the mediators report does not show what language was used in the mediation process hence showing that it was conducted in a language the administrator did not understand, further that it does not show how her children participated or what role her advocate took in the process. That it is evident – simply because the report bears only the conclusion – to conclude that the Administrator signed the document without knowing or having the mediator/court appointed interpreter explain the contents in a language known to her.

22. The applicant’s submissions were filed on 10th March 2023. Iy was submitted that the importance of the mediation process was highlighted by A.O Muchelule J. as he then was in Re: Estate of BM (deceased) Succession Cause No. 2195 of 2015 consolidated with Succession Cause No. 1975 of 2015 [2019]eKLR where the Judge stated;“The family division and the Judiciary as a whole have embraced mediation in the resolution of civil disputes filed by the parties. Mediation is an informal and non-adversarial process where an impartial mediator encourages and facilitates resolution of a dispute between two or more parties. Like was stated by Judge P. J. O. Otieno in Amcon Builders Ltd –v- Vintage Investments Ltd & Anor [2018]eKLR, the mediator merely guides the parties by setting an atmosphere for mutual, candid and honest discussions. He makes no determination. Where the parties have agreed on all, or some of, the issues in dispute he helps in the drafting of the agreement which is then owned by the parties by them appending their signatures. The agreement, which is known as mediation settlement agreement, is then filed into court which adopts the same as the order or judgment of the court. The agreement becomes enforceable. The process of mediation is governed by the Judiciary of Kenya Practice Directions on Court Annexed Mediation issued by the Chief Justice under Article 159 of the Constitution and section 59B(1)(a), (b) and (c) of the Civil Procedure Act”

23. Counsel submitted on the grounds upon which an arbitral award can be set aside citing section 35(2) of the Arbitration Act No. 4 of 1995 and the power of the High Court to set aside the arbitral award – when it finds that “the subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya”.

24. Counsel submits that the mediation agreement should be set aside because –a.The mediator involved strangers who are not parties in this cause.b.The administrator/applicant was denied her right to a fair hearing as espoused under the Constitution of Kenya.c.That the mediator did not allow the applicant to be represented by her children who would have helped her understand the proceedings of the case.

25. The protesters submissions were filed on 26th September 2022. It is submitted for the protestor that the application is opposed for the reasons set out in the affidavit in response by Kithome Wambua.

26. That there were no strangers at the mediation process, only members of the family of the administrator and the protesters, that the administrator/applicant had not established the existence of any deception, trickery by the respondents or the mediator during the mediation process – that upon the settlement the same was filed in court on 7th June 2021. The respondent cited John Wanjohi t/a Metro Laboratories –v- AG [2019]eKLR where the court rejected an application to set aside a mediation settlement – and on Re Estate of BM (deceased) [2019]eKLR; NKM –V-SMN & Anor [2019]eKLR.

27. I have carefully considered the long journey this matter has travelled. I have set out the process of this cause from the time it was Machakos Cause 851/12 to now when it is Makueni HC. Cause No. 427 of 2017. It has been a long journey that must come to an end. I have considered all the evidence, the affidavits by all parties and the submissions by counsel.

28. It is clearly evident from the record that the Parties have been wanting to settle the issues herein by way of an out of court settlement from the beginning. So, the only issue for me to determine is whether there has been laid good reason to set aside what the applicant refers to as the “mediation report.”

29. Article 159(2) (c) of the Constitution of Kenya 2010 requires that the courts in exercising Judicial authority be guided by “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause (3) …” Hence, this court has the duty to encourage the amicable settlement of disputes that are brought before it.

30. I have set out the Summons for Confirmation of Grant and the affidavits of protest – and it is not in doubt that the only issue was the distribution of the estate of the deceased. This is eminent in that the family first had an out of court settlement among themselves where it was deponed by members of the family that the deceased had indeed distributed his land to members of the family. When a despite arose they went before the elders and the provincial administration represented by the ACC. When that did not work well they now through court annexed mediation.

31. I pick it from the authorities cited by the parties herein that court annexed mediation is intended to ensure the true justice of the case – to restore the broken relations, to achieve what justice is intended to be between the parties, and in the community – that is why it is consensual, that is why it is informal – that is why the only role the mediator plays is to guide the parties to arrive at a solution by themselves for themselves – because it is a solution it is expected they are they are ready to live with.

32. It is never intended to be formal and the things said by the parties in mediation process cannot form part of the proceedings in the formal proceedings that is why the only thing filed by the mediator is the settlement – the final report. In this case the settlement shows who was present, and what was agreed on. The document is signed by all the parties and their advocates – the photograph speaks to that – the fact that members of the families involved is not an issue – a mediation process may involve friends and relatives of the parties involved if they have no objection. There is nowhere in the affidavits sworn by the applicant where she says that her advocate and children who were present objected to anything and they were not heard;

33. Her advocate was present. Surely, if anything went wrong during the process, the advocate would have been the 1st person to object to the process long before the mediation was settlement was signed – the mediation settlement appears to have settled the issue referred by the court to the mediator. The applicant has not anywhere in the affidavit demonstrated any fraud/undue influence or any wrong doing by the mediator on the other parties.

34. The applicant argues that this court can set aside any arbitral award where it finds that the subject matter cannot be settled under any Kenyan Law – the issue here is an issue of distribution of the estate of a deceased person. That is an issue that can be arbitrated upon– can be settled through a family agreement/through mediation even traditional dispute resolution mechanism/AJS – all these hence that is not an argument that can hold water. The applicant has clearly no ground on which to refute the mediation settlement but has tried to bring to court constitutional issues that do not exist.

35. There is no reason in my view placed before me by the applicant to warrant the orders sought. See NKM –v- SMM supra.

36. In the circumstances, the application is dismissed for want of merit.

37. The mediation settlement be and is hereby adopted as the order of this court and a certificate of confirmation of grant to issue accordingly.

38. This being a family matter each party to bear its own costs

39. Orders Accordingly

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER 2023MUMBUA T MATHEKAJUDGEMutinda Kimeu & Co Advocates for the Administrator/Applicant - No appearanceO.N Makau Mulei & Co Advocates for the RespondentsMs. Kyalo for Administrator/ApplicantRuling HC Succession Cause no 427 of 2017 Page 8 of 8