[2022] KEHC 16188 (KLR)

In re Estate of Andrea Ooko Tianga (Deceased) (Succession Cause 5 of 2009) [2022] KEHC 16188 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16188 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 5 of 2009

PJO Otieno, J

December 9, 2022

Between

Esther Adhiambo Barasa

Petitioner

and

Hassan Amiami Ongachi

1st Objector

Athman Swaleh Akhonya

2nd Objector

and

Grace Oudo Omwalo

Respondent

West Kenya Sugar Co. Ltd

Respondent

Ruling

1. Two applications, dated November 25, 2019 and November 26, 2019, were filed separately but jointly seeking in the main the joinder of three people as interested parties and for review of the orders of May 30, 2019 by which the grant and certificate of confirmation made to Esther Adhiambo Barasa, the petitioner, were revoked and all steps and actions undertaken pursuant thereto reversed and the estate property directed to revert registered in the name of the deceased.

2. The grounds for seeking joinder is that the three sought to be joined were, as at the date of the ruling the registered proprietors of sub divisions of the estate property having bought same from the administrator. On the other hand review is sought on the basis that the orders were given with effect of depriving the proprietors of property but without them being served and given an opportunity to be heard.

3. Those facts were reiterated in the affidavits in support it being stressed that the sale of the portion of the estate were effect by the administrator in her capacity as the administrator.

4. The two applications were separately resisted by the joint affidavit sworn by Hassan Amiani Angachi And Athman Swaleh Akhonya pursuant to the leave granted on the June 28, 2022.

5. In the said affidavit the objectors assert that their claim to the estate property is founded on the court order of July 3, 1997 which adopted the verdict by lurambi land disputes tribunal awarding to them three (3) and twelve (12) acres of the estate property, respectively, which the deceased was not willing to transfer to them compelling them to seek a vesting order and getting so registered as proprietors thereof. They contended that they registered a caution against the property but the same was removed out of the Petitioner misleading the court to do.

6. It was after the caution had been removed that the two moved the court by an application for revocation of grant which application was allowed with leave to the petitioner to file an appeal but no such appeal was ever lodged till time lapsed. In conclusion the deponents contend that the application was bad for being res judicata and thus an abuse of the process of the court.

Analysis and Determination: 7. The court has perused the file and was unable to lay its hands on the decision dated June 20, 2019. The court record show that an application dated September 27, 2018 was argued on March 5, 2019, a ruling reserved for April 25, 2019 but was ultimately delivered on May 30, 2019. That ruling revoked the grant of letters of administration granted to the Petitioner on September 19, 2009 and the certification of confirmation dated April 13, 2011. It also cancelled the sub division of the estate property and subsequent registration as Butsotso/Esumeiya/2659, 2660, 4705 and 4706 and directed that the registration be reverted back to the deceased. Fresh grant was then issued to two objectors with an order that application for confirmation be filed within forty five (45) days from that date. It appears no such application has been filed.

8. The next date the matter was in court was on November 11, 2019 when it was directed that the application dated November 7, 2019 be served and heard inter parties on November 14, 2019. I see no court records or proceedings yielding any order dated June 20, 2019. Consequently, I do find that prayer (1) of the notice of motion dated November 25, 2019 is incapable of grant owing to absence of any order made on the June 20, 2019.

9. How about the request for joinder as interested parties? In every judicial proceedings, any party that is likely to be prejudice by a court order but is not a party is a necessary party to be made party to the proceedings.

10. In Trusted Society of Human Rights Alliance v Mumo Matemu [2015] eKLR, the Supreme Court laid the applicable principle for joinder of a party to a litigation to be that the applicant must be:-“One who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.”

11. The Affidavits sworn by Esther Adhiambo Barasa in support of the application dated November 25, 2019 is unequivocal, and not controverted, that she, while holding a valid certificate of confirmed grant, sold portions of the estate to Grace Oudo Omwalo, Boaz Lijodi Shipimilu and David Moi Henry Muchelule. On that uncontroverted fact deposed under oath, the court finds that the three purchasers from the administrator, are necessary parties to the cause as persons whose titles were cancelled by the decision of May 30, 2019. On that basis, it is ordered that Ms Grace Oudo Omwalo, Boaz Lijodi Shipimilu and David Moi Henry Muchelule be joined as interested parties to this Cause.

12. The next prayer for consideration is that for review of the orders of May 30, 2019 by which the grant was annulled and titles cancelled for the property to revert to the name of the deceased. The grounds put forth in the application dated November 26, 2019 are to the effect that that application was never notified to the applicants (now joined as interested parties) and the proceedings undertaken without according to them the right to be heard.

13. That contention of lack of service and therefore denial of the right to be heard as a foundation of the right to a fair hearing has not been denied by the respondents. In facts, no allusion by way of a response was made to the accusation. The court reminds itself that the right to be heard is a basic and fundamental right and one of the rights that are non derogable. Without evidence that indeed the three were ever served with the application dated September 27, 2018 and yielding the decision of May 30, 2019, there is no justification not to accept the assertion by the three interested party that the proceedings were undertaken behind them. If so done behind them, and it results in deprivation of property, then such an order is the kind that the court has the jurisdiction to set aside ex debito justitiae. It is an error that now stare at the court on the face that rights of the three interested parties to a fair hearing were overlooked and denied.

14. The court find that denial or failure to respect the rights of the interested parties to be heard is an overwhelming reason to set aside proceedings undertaken consequent thereto. It is therefore the finding of the court that the proceedings of March 5, 2019 were taken in violation of article 50 (1) of the Constitution and are therefore contra the letter and spirit of the Constitution, were therefore bad to that extent and must be set aside. The same are set aside together with the ruling of May 30, 2019. The effect is that the application dated September 27, 2018 shall be served upon the interested parties forthwith for hearing on the merits.

14. The court orders that each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the PetitionerMr. Osango for Shifwoka for the ApplicantsNo appearance for Mango for the RespondentsCourt Assistant: Polycap