[2022] KEHC 1426 (KLR)

JUSTICE BE OUR SHIELD AND DEFENDER

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

SUCCESSION CAUSE No 40 of 2014

IN THE MATTER OF THE ESTATE OF ALPHONSE MUSINE AMARE (DECEASED)

B E T W E E N:

FLORENCE MAKUTSA MUSINE .....................................................................PETITIONER

AND

BERNADETTE MMBWANI MUTUNGOI ..................................OBJECTOR/PROTESTOR

R U L I N G

1. This Matter concerns the Estate of the Late Alphonse Musine Amare who passed away on 3rd April 1995. He was survived by his Widow and Son. The Widow Florence Musine Amare petitioned for grant of letters of administration. The Letters of Administration were issued on 13th May 2014 to the Widow Florence Makutsa.

2. Shortly thereafter, the Objector/Protester Bernadette Mmbwani Mutungoi filed an application asking the Court to take into account her interest in the estate and to be recognised as one of the Beneficiaries. Her case was that she had purchased some land from the Deceased in his lifetime and taken occupation thereafter, to date. The Petitioner disputed that. The Petitioner files a summons for confirmation of grant dated 1st April 2016 seeking to distribute the only asset a parcel of land No. Isukha/Shirere/2659 allocating to the Protestor 0. 08 Ha.

3. The Court (differently constituted) heard oral evidence. Hon Mr Justice Njagi heard oral evidence. At first the Petitioner denied that the Protestor had purchased any land at all. She then conceded that the Protestor was occupying 0. 08 Ha. The Protestor has been consistent that she had purchased and occupied 0. 36 Ha. The Learned Judge delivered two Rulings. The first Ruling directed the Parties to obtain a surveyor’s report. The purpose of the Surveyor’s Report was to inter alia ascertain the size of the portion of Land occupied by the Protestor. The Report concluded that the parcel of land occupied by the Protestor was 0. 35 Ha. It was fenced off and therefore easily demarcated. That was held to be her entitlement from the Estate. The Ruling was delivered on 22nd May 2020. The Certificate of Confirmation of Grant was issued on 5th June 2020.

4. On 21st September 2020 the Petitioner filed an Notice of Motion Application dated 27th July 2020. The Application is brought under Section 47 of the Law of Succession Act Rev 2012. The Petitioner/Applicant seeks the following Orders:

“1. THAT His Lordship be pleased to review and/or vary the court’s order made on 22/5/2020

2. THAT any other further orders be made as the Honourable court may deem just and expedient

3. THAT the costs of this application be provided for.”.

5. The Grounds relied upon, that appear on the face of the Application are:

“a. THAT there is an error apparent on the face of the record in that in the order made on 22/5/2020 the Honourable court awarded to the Respondent a portion of land measuring 0. 35 ha which land the Respondent was found to be in occupation instead of land measuring 0. 28 ha. Which the Respondent in her evidence adduced to have actually purchased.

b. THAT the purpose of the Honourable court calling for a report of a Surveyor to confirm the acreage of the portion of land the Respondent occupied/uses was to determine the land occupied by the Respondent vi avis the amount of land the Respondent said she had purchased as also weighed against the excess amount of land the Applicant said the Respondent had forcefully taken.

c. THAT this application has merit and is brought up in good faith.”.

6. The Application is supported by the Affidavit of the Applicant/Petitioner, Florence Makutsa. In her Affidavit the Applicant relies on the evidence adduced at the Hearing of the Objection/Protest. In fact, she goes as far as to exhibit the Ruling delivered on 28th March 2019. At paragraph 3 she states that; “The Applicant was clear that her entitlement to the parcel of land no ISUKHA/SHIRERE/2659 was two portions which measuring 20 x 60 steps and 60 x 30 steps.”. At paragraph 4 the Applicant presents a mathematical calculation when she says “THAT I state and swear that a conversion of the area measuring 20 steps by 60 steps comes to 0. 12 ha. While 60 steps by 30 steps when converted comes to comes to 0. 16 ha making a total of 0. 28 ha.”. The Applicant now asserts that the Respondent took and occupied more than she was entitled to.

7. At paragraph 8 the Applicant depones “THAT I state and swear that, indeed the purpose for which the court had ordered that the area of land occupied by the Respondent be confirmed by the Surveyor was to ensure that the Respondent gets land equivalent to what she stated that she had bought which measures 0. 28 ha and not 0. 35 ha.”.

8. The Respondent filed her Replying Affidavit on 10th October 2020. In it she responds to the Motion and Supporting Affidavit. She says;

“2. That I have read and understood the notice of motion together with the supporting affidavit dated27th JULY 2020.

3. That what the petitioner says in paragraphno 1, 2, AND 3of the affidavit is true.

4. That the petitioner is trying to make appeal through the back down which should not be entertained by this honourable court.

5. That nowhere on record did I say that I bought0. 28 haas alleged by the petitioner on her grounds of the application and she should be put to strict prove of the same.

6. That nowhere on the surveyors report shows that I bought 0. 28 ha from the deceased.

7. That the petitioner never raised any objection to the surveyors report and this is an afterthought for she together with her advocate where in court.

8. That what is contained in paragraphNO 4of the affidavit is not accompanied by any professional backing either from the ministry of lands, licensed surveyor or any lands professional body.

9. That what is contained in paragraphNO 4cannot be entertained in this court but in theELC COURTwhich deals with conversions and boundaries.

10. That the surveyor who was proposed by the petitioner couldn’t determine measure of steps on the ground as per paragraphNO 2of the surveyor’s conclusion report.(and the same is herewith attached and markedBMM 1).

11. That the surveyor could not determine the units used in the60 by 30 ie was it feats, meters or kilometers.

12. Thatwe both agreedto measure my land which was found to be0. 35 haand that is what this honourable court awarded me…..

17. That I request this honourable court to dismiss this application with cost….”

9. The Applicant filed a Further Affidavit, following which the Respondent filed a Further Replying Affidavit. The ghist of the Applicant’s position in the Further Affidavit is that the Court ordered measurement of the portion occupied to ensure that the Respondent was occupying only that which she had bought. That was said to be 0. 16 ha and 0. 12 ha expressed as steps. It is argued that as the Respondent occupies 0. 35 ha instead of 0. 28 ha she has taken more than she purchased. The excess is 0. 07 ha. In the circumstances, it is argued that the Court made and “error” in awarding the Respondent the full 0. 35 ha. The Further Replying Affidavit sets out what the Deponent states is the applicable law. She says that the Applicant is limited by the provisions of Civil Procedure Rules Order 45. She argues that there are no mistakes or errors apparent on the face of the record and there is no new and important matter or evidence placed before the Court. She argues that what is said to be an error is “a long-drawn out process of reasoning on a point where there may conceivably be two opinions.”. It is further argued that the Supporting Affidavits do not point to any error apparent on the face of the record. It is also argued that this Court does not have jurisdiction to review the matter, and the Applicant’s only option is to appeal.

9. Unfortunately, by the time the Parties had completed their exchange of evidence the Hon Judge who wrote the Ruling had been transferred to a different station. It therefore falls on the Court as currently constituted to determine the Application. Thereafter the Parties have filed their Written Submissions, which have been considered carefully.

10. The Applicant’s argument is based on the evidence given by the Respondent/Protestor and her witnesses leading up to the Order directing the Parties to obtain a surveyor’s report. It is said; “The Honourable Court Your Ladyship, we submit that when making its decision on 22/5/2020, came to the conclusion that the Respondent was entitled to 0. 35 ha instead of the 0. 28 ha. We submit that the portion of land to which the Respondent is entitled to is what the Respondent bought which is measuring 0. 28 ha. We submit, therefore, that the court erred in giving the Respondent land measuring 0. 35 ha. This is the error we are making reference to and it is apparent on the face of the record.”. In relation to the Respondent’s case, it is argued that; “The Respondent in her replying affidavit sworn on 5/10/2020 attacks the application arguing that the application is appealing against the decision… We submit this is not the case. The Respondent has, therefore not responded to the real issue which is the error. The Respondent has, in effect, not responded to the issues raised in the application. It is in light of this that we submit Your Ladyship, that the application is not opposed.”,

11. The Respondent’s Submissions too were duly filed. In her Submissions the Respondent argues on several fronts. Firstly, she argues that what the Applicant is arguing about her acquiring more land than purchased, founds a claim for conversion. That is not within the jurisdiction of the High Court but of the Environment and Land Court. Further, she argues that the Application must be within the parameters of Order 45 of the Civil Procedure Rules. She says under Order 45 the Applicant must demonstrate an error on the face of the record, alternatively a new or important matter or evidence which could not have been produced earlier using due diligence. She says there is no mistake or error on the record identified, nor is there any new matter or evidence put forward in the Application. The Respondent further argues that the Application is based on an incorrect statement of the facts in paragraph 4 of the Further Affidavit. She asserts that the Court made no error in awarding her the land that she had actually purchased. She also says the Application is an afterthought based on the hope that a different judge would come to a different decision. The Applicant relies on decision in Succession Cause No. 88 of 2011: In the Matter of the Estate of Simoto Omwnje Isaka (Deceased) from the High Court at Kakamega.

12. In that authority, the Learned Judge cites a number of additional authorities setting out definitively how applications for review in succession matters should be handled. The starting point is to recognise probate causes are governed by the Probate and Administration Rules, save for when the Civil Procedure Rules are imported into probate proceedings. Under the Probate and Administration Rules, Rule 63 deals with the review of decisions and provides:

“63. Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules

(1) Save as is in the Act or in these Rules otherwise provided and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV,XLIV and XLIX (Cap 21, Sub. Leg), together with the High Court (Practice and Procedure) Rules (Cap 8 Sub. Leg) shall apply so far as relevant to proceedings under these Rules.

(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”.

13. The above analysis was confirmed in John Mundia Njoroge & 9 Others vs Cecilia Muthoni Njoroge 7 Anor [2016] eKLR, when the Court in reference to the above stated Rule 63 said;

“As stated above, the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are orders dealing with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attending witnesses, affidavits, review and computation of time. Clearly Order 45 relating to review is one of the Civil Procedure Rules imported into succession practice by rule 63 of the Probate and Administration Rules. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in Order 45 of the Civil Procedure Rules.”.

14. It is therefore, undeniable that Order 45 of the Civil Procedure Rulesapplies to this Application. Order 45(1) provides;

(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…”.

15. The Ground that the current Application relies upon is that there is an error on the face of the record. What then amounts to an error on the face of the record. The Court considered the question in Muyodi vs Industrial and Commercial Development Corporation & Anor (2006) 1EA 243 and stated that;

“In Myamogo & Nyamogo vs Kogo (2001) EA 174this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares on in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.”.

16. The error relied upon by the Applicant is enunciated in Ground (a) of the Application which states:

(a) THAT there is an error apparent on the face of the record in that in the order made on 22/5/2020 the Honourable court awarded to the Respondent a portion of land measuring 0. 35 ha which land the Respondent was found to be in occupation instead of land measuring 0. 28 ha. Which the Respondent in her evidence adduced to have actually purchased.

In effect, the Applicant is complaining that the Learned Judge after directing a surveyor’s report be produced, he went on to accept the findings and adopt the conclusions.

17. The arguments put forward by the Applicant would like this Court to re-visit the evidence before the Learned Judge hearing the Protest. The Affidavits and Submissions filed by the Applicant invite the Court to interpret the evidence and the Ruling any. That would involve giving it greater or lesser weight than the Learned Trial Judge.

18. Further, the record shows clearly that the Court heard the evidence of the Applicant/Petitioner and the Respondent/Protestor and her witnesses. The Protestor gave evidence that the Deceased sold his land. He sold her one portion. He sold another portion to a second person from the village who then sold it on to the Protestor. He then sold a third portion to a different person from the village, then rescinded the sale and sold that piece to the Protestor. The Protestor gave evidence that during the lifetime of the Deceased, she fenced off all that she purchased and continued living there without any interference until the Succession Proceedings. She also told the Court that neither the Deceased, nor his mother, nor his brother Henry took any challenge with her occupation thereafter. The evidence of the Protestor was corroborated by her witnesses.

19. The evidence of the Repondent/Protestor is recorded clearly. She said “I purchased land from the deceased, in the presence of his mother and brother. They had also sold land to another person who had purchased land from the deceased. This purchaser sold to me the land which was to be added to the one I purchased from the deceased. I have not had a disagreement with the deceased’s family. Ther Petitioner was not present when I purchased the land from the deceased.”. Under cross examination she confirmed that there was a written sale agreement. She also said the land was demarcated. It was also her evidence that “I again bought a portion of land from Evans Karani.”. He evidence was corroborated by PW 2 a Joseph Masinde Munai who was a neighbour of the Deceased. He confirmed that the Deceased had offered him a part of the land for sale. He was unable to complete so the Respondent/Protestor bought the land. He also said she built a house on the land. He confirmed that the shamba was sold to Bernadette by the Deceased (Alpfonse), his brother Henry and their Mother Anota Karani. PW-3 Kizito Indeche Alusio gave evidence, that he too was a neighbour. He learnt that Bernadette had “purchased the land from Anota, Musine and Henry”. He was called to construct a fence around the land. He was shown the boundary by “Musine”. He built the fence. He also said “Since then I have not heard any complaints” and “The fence is still the way I did it.”. He also confirmed that the Petitioner/Applicant was not there. She had separated from the Deceased. She returned after he died and she did not bring her Petition until after Henry and Anota had also died. PW-4 is the Protestor’s son. He gave evidence that he and his mother have lived on the land from more than 20 years and there has been no dispute over ownership or boundaries. It was only after Musine, his Mother and Henry died, that a dispute came into being. He says it was the wife of Musine who brought up the dispute. Each of the Protestor’s witnesses confirmed that she occupied the land within the fence from the time of the purchase. They were unable to tell the Court the acreage of the land. Only Pw-2 was able to say that the total land Musine, Henry and Anota had was 2 acres.

20. The Petitioner gave evidence and called her son. Their evidence was that they knew Alfonze owned the land but they were not there when the sale and fencing took place but they were disputing it in any event.

21. In his Ruling delivered on 28th March 2019, Hon Mr Justice Njagi noted that, “the Protestor contends that the size fo the two portions of land is 0. 36 Ha”…. “The petitioner on the other hand proposes to distribute the estate… Petitioner: 1. 01 Ha and Protestor: 0. 08 Ha.”. The Learned Judge went on to say at paragraph 6 of the Ruling; “The copies of the agreements annexed to the protestor’s affidavit indicates that the portion she bought from the deceased in 1990 measure 60 steps by 30 steps and the one that she bought from Evans in 1998 measured 60 steps by 30 steps. It is not clear from the evidence whether what the protestor is occupying on the ground measures to what she alleges to have bought. It is not clear whether what she occupies measures 0. 08 Ha or 0. 36 Ha. No report of a surveyor was filed to ascertain this”. At paragraph 7 he said; “In view of the above, it is the considered view of this court that before the determination of the issues raised herein is need for the parties to send a surveyor to the land in issue to ascertain the following:

1) The total hectares that the protestor is occupying on the grounds.

2) Whether what the protestor is occupying measures 0. 08HA or 0. 36 Ha.

3) Whether what the protestor is occupying is equivalent to what she alleges to have bought i.e. 60 x 20 steps and 60 steps by 30 steps.”.

21. The Report was filed on 17th January 2021. The Findings were recorded thus: “We found out that the protestor occupies 0. 35 Ha on the ground”. Included in that parcel is the 0. 16 Ha which the Protestor claimed to have bought. Also within the same parcel is the 0. 12 Ha which the petitioner showed them as having been sold to the Protestor. In its conclusion the report confirmed that the protestor occupies 0. 35 Ha.. They also said the could not measure the steps on the ground but were able to pick up the co-ordinates.

22. In his Ruling delivered thereafter, the Learned Judge set out his reasoning and findings thus:

“13. The sale agreement with the deceased shows that the deceased sole her that parcel of land in 1990. The sale agreement with Evans Karani shows that the petitioner bought that parcel in 1998 which was after the death of the deceased. PW3 in his evidence stated that he fenced the land that the protestor had bought during the lifetime of the deceased. The deceased died in 1995. If PW3 fenced the land during the lifetime of the deceased it means that what he fenced did not include what was bought from Evans Karani as that parcel was purchased after the death of the deceased.

14. That notwithstanding, the evidence of the protestor that she bought land from the estate of the deceased was not challenged. The protestor came into occupation of the land during the lifetime of the deceased. That means that the deceased had sold her land. The petitioner’s witness, DW2 confirmed that the deceased had sold land to Evans Karani which land the protestor purchased from Evans Karani. That shows that the protestor bought two parcles – from the deceased and from Evans Karani.

15. All what the petitioner could say is that she does not know the circumstances under which the protestor came intooccupation of the land. She never offered any evidence to challenge the evidence of the protestor that she bought the two parcels of land. I find that the protestor purchased the land in issue.

16. The petitioner contended that what the protestor was occupying on the ground was 0. 08 HA. The surveyor’s report indicates that the protestor is occupying 0. 35 ha. That being the case I have no hesitation to hold that what the protestor bought from the estate of the deceased measured 0. 35 HA. It is clear that there has never been any dispute over the size of tha land that the protestor bought until when the petitioner filed the summons for confirmation of grant herein on 1st April 2016. The petitioner has not proved that the protestor bought only 0. 08Ha

24. The Learned Judge’s decision is clear and well reasoned. It does not point to a clear error but rather a process of evaluation and deduction. Therefore, the Applicant has not demonstrated that this is an appropriate case for the Court to exercise its powers to review the decision in the way argued by the Petitioner.

25. However, that said, there is clearly a typographical error in paragraph 3 of the Ruling delivered on 22nd May 2020. It says, “The sale agreement with Evans Karani shows that the petitioner bought that parcel in 1998”. It is clear that the reference to “petitioner in that sentence, should be a reference to the Protestor buying the land. That is confirmed by sale agreement exhibited as BMM 2 which is entitled “MASIKIZANO YA UHUZAJI WA SHAMBA KATI YA NERNETA MMBWANI NA BWANA EVANS MUKOYANI KARANI” (Sale Agreement between Bernadette and Evans Karani) dated 10th April 1998.

26. In the circumstances, the interpretation of the Surveyor’s report now contended for by the Applicant would be more appropriate as the subject matter of an appeal and/or before the Environment and Land Court. For the reasons aforesaid, the Application is dismissed with costs. Cost are justified in this case because, although the dispute is within a succession cause. The Parties are not related.

DATED: 3RD FEBRUARY 2022

Order accordingly,

FARAHS.AMIN

JUDGE

DELIVERED, DATED AND SIGNED IN KAKAMEGA HIGH COURT THIS THE 10TH DAY OF MARCH 2022

In the Presence of:

COURT ASSISTANT: CLEMENT OKOIT

APPLICANT/ PETITIONER:

N/A OBJECTOR IN PERSON