[2023] KEHC 1443 (KLR)

In re Estate of Annah Nyawira Githiari (Deceased) (Succession Cause 13 of 2018) [2023] KEHC 1443 (KLR) (2 March 2023) (Ruling)

Neutral citation: [2023] KEHC 1443 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 13 of 2018

FN Muchemi, J

March 2, 2023

Between

Isaiah Wamunyu Githiari

Objector

and

Samalo Wanjiru Ndungu

Petitioner

Ruling

Brief Facts 1. This application dated March 16, 2022 seeks for orders for stay of execution of the orders made on March 7, 2022, adopting the report of the Court Annexed Mediator and for the court to direct the parties to avail themselves for hearing in open court.

2. The respondent filed a replying affidavit dated June 9, 2022 in opposition to the application.

The Applicant’s Case 3. The counsel for the applicant swore the supporting affidavit to the application and stated that on September 24, 2021, he filed an objection to the dispute herein being referred to a Court Annexed Mediator and that he and the applicant have not attended any mediation meeting but it has come to his attention that the mediator has filed or is in the process of filing a falsified report/award to be adopted by this court.

4. It is further deposed that the dispute herein ought not to be referred to a mediator because the respondent is trying to run away from her criminal prosecution vide Nyahururu Chief Magistrate Court Criminal Case No 169 of 2019. As such, counsel contends that the matter ought to be heard and determined by the honourable court.

The Respondent’s Case 5. The respondent opposed the application on ground that it is the applicant and not herself who proposed for the matter to be referred to mediation. The respondent further deposes that at the date of signing the mediation report, all parties were present including the counsel for the applicant, who stated that he wanted to consult one Wanjiku. The respondent states that during mediation session, the applicant also requested to go consult the same Wanjiku who is his sister in-law and works with the judiciary in Engineer Law Courts, Nyandarua County. The respondent further contends that counsel for the applicant returned after consultations and stated that he had been advised to oppose the mediation and refuse the outcome.

6. The respondent avers that the introduction of criminal proceedings is aimed at instigating bias on the court against her whereas she stated in her affidavit that she did not introduce the deceased in land parcel number Subukia/Subukia Block 1/215 Tetu. The respondent states that the mediation actually took place and the report is based on the mediation carried out.

7. Parties disposed of the application by way of written submissions.

The Applicant’s Submissions 8. The applicant reiterates the contents in the supporting affidavit and submits that he had objected to the cause being referred to a mediator. The applicant further submits that he has consistently complained that the respondent had intermeddled with the estate of the deceased specifically land parcel number Subukia/Subukia Block 1/215 Tetu, whereby the respondent was charged with the offence of fraudulently procuring the registration of the same contrary to Section 103(1) of the Land Registration Act No 3 of 2012. The applicant states that the determination of the said criminal case is an issue that requires the hearing of this matter in an open court for the court to investigate the issue further before drawing its own conclusions. Moreover, the applicant argues that the criminal charge facing the respondent in regard to the land parcel forming the estate of the deceased is an exceptional circumstance warranting the intervention of this Honourable court. To support his contentions, the applicant refers to the case of Kenya Alliance Insurance Company Limited vs Annabel Muthoki Muteti [2020] eKLR.

9. The applicant submits that he has raised very serious issues as to the conduct of the mediator whose attitude has been questionable.

The Respondent’s Submissions 10. The respondent submits that the application is without merit, vexatious and an abuse of the court process as the court has already adopted the mediation report as the judgment of the court. Thus, the respondent argues that even if the mediation report is stayed, the judgment itself would still remain since the court has already adopted the full settlement as the judgement of the court.

11. The respondent further submits that the application as drawn cannot stand because, the applicant has not sought to have the mediation settlement or the order of the court adopting the mediation agreement as a judgment of the court be set aside. Consequently, the prayer for the parties to avail themselves for full hearing would be absurd as there is already an order adopting the settlement as judgment of the court.

12. The respondent argues that the applicant is insinuating that no mediation took place. Further, although the applicant questions the mediator’s conduct, he has not made the mediator a party to the application nor has he served the mediator with the said application to enable the mediator put in a response to the allegations made against him. Moreover, the respondent states that no allegations have been levelled against her.

13. The respondent submits that the applicant has not personally put in an affidavit to his application but his counsel has sworn the said affidavit which makes the situation embarrassing. The respondent states that she is an administrator of the instant estate and she put in her affidavit which is explicit and has indicated that indeed mediation did take place and in the course of the mediation, the applicant and his counsel were consulting an individual who is not part of the mediation or the instant succession cause.

14. The respondent urges the court to dismiss the application and brings it to the court’s attention that the applicant is in the habit of filing incessant applications in a bid to delay the final determination of the succession cause.

The Determination 15. The respondent contends that the application was supported solely by an affidavit sworn by the advocate thus making the advocate a party to the suit. It is trite law that in matters which entail contentious evidential facts or issues of evidence, it is neither wise nor appropriate for an advocate to depone an affidavit. Where an advocate swears an affidavit in contentious and controversial evidential issues, such an advocate steps down from being an advocate and becomes a witness and can be cross-examined. In the case of Regina Waithira Mwangi Gitau vs Boniface Nthenge [2015] eKLR the court observed:-On issue number one, the established principle of law is that advocates should not enter into the arena of the dispute by swearing affidavits on contentious matters. By swearing an affidavit on contentious issues, an advocate thus makes himself a viable witness for cross-examination on the case, which he is handling merely as an agent which practice is irregular.

16. Similarly in Simon Isaac Ngugi vs Overseas Courier Services (K) Ltd [1998] eKLR and Kisya Investments Ltd & Others vs Kenya Finance Corporation Ltd it was held that:-……….it is not competent for a party’s advocate to depose to evidentiary fact at any stage of the suit.

17. In this matter, the instant application is supported by the affidavit sworn by the counsel for the applicant. He has deposed to contested facts particularly on the mediation proceedings and has gone to the extent of accusing the mediator of doctoring the mediation report. The facts sworn by the advocate raise serious questions of fact and evidence which would require the advocate to be cross-examined to determine the truth.The said facts sworn by the counsel cannot be verified for the foregoing reasons. In my considered view, the said affidavit serves no useful purpose to this application. In essence, the affidavit is worthless for it adds no value to the applicant’s application.

18. Even assuming the affidavit of the application was competent, it is trite law that a mediation agreement is equivalent to a consent order between the parties. As such the principles applicable to setting aside consent orders ought to apply herein.

19. Generally, a court will not interfere with a consent judgment except in circumstance such as would provide a good ground for varying or rescinding a contract between parties. In the case of S. M. N vs Z. M. S & 3 Others [2017] eKLR summaries the case law and grounds upon which a consent may be varied or set aside as follows:a)Where the consent was obtained fraudulently;b)In collusion between affected parties;c)Where an agreement is contrary to the policy of the court;d)Where the consent is based on insufficient material facts;e)Where the consent is based on misapprehension or ignorance of material facts;f)Any other sufficient reason.Similarly in Flora N. Wasike vs Destimo Wamboko [1988] eKLR Hancox JA held the view that:-It is now settled law that a consent judgment or order has a contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.

20. In Kenya Commercial Bank Ltd vs Specialised Engineering Company Ltd [1982] KLR 485, Harris J:1. A consent order entered into….. is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.

21. Essentially, the above-cited authorities are clear that a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for any other reason, that would enable a court to set it aside. This matter was referred to mediation on August 10, 2021 in the presence of the respondent. The court on September 20, 2021, mentioned the matter and confirmed that the matter had been referred for mediation and a date was fixed for compliance to check whether the mediator will have filed the agreement. On the said date, the applicant’s counsel was present in court. Counsel for the applicant filed an Objection to the dispute being referred to mediation on September 24, 2021 but, he did not follow up the objection to obtain orders to stop the mediation process. The court noted the same on March 8, 2022 and proceeded to adopt the mediation agreement dated October 18, 2021 as the judgment of the court.

22. I have perused the proceedings in the mediation session dated October 18, 2021. The applicant is said not go have attended the mediation session to sign the agreement. The mediator is said to have called both the applicant and his counsel on mobile phone but they declined to attend to the matter on that day. This explains why the applicant’s signature is missing from the mediation agreement dated October 18, 2021. The correct position was that the applicant declined to go before the mediator to sign the agreement after both parties had been fully heard.

23. The applicant is also contending that the mediator’s conduct is wanting and that the court ought to intervene as the respondent is facing criminal charges in relation to land parcel number Subukia/Subukia Block 1/215 Tetu in the Chief Magistrates Court in Criminal Case No 169 of 2019 which the applicant has conveniently only annexed proceedings of January 23, 2019. Nevertheless, the criminal case is in a competent court of law, which is equipped to handle the matter independently of these succession proceedings. In my view, the said subject is not relevant to this application. That notwithstanding, I have perused the court record and noted that L R No Subukia/Subukia Block 1/215 is not among the assets listed in the mediation settlement dated October 18, 2021. In fact the applicant herein filed an application dated January 14, 2019 in which he sought to have the said land parcel be included in the assets of the deceased for distribution. The parcel is listed in form P &A5 as an asset in the estate in the petition filed by the respondent herein.

24. It is my considered view that the applicant’s counsel swore an affidavit in support of this application on very contentious issues which he is not in a position to verify. The affidavit is hereby struck out thus rendering this application defective for want of fact to support it.

25. I hereby strike out this application for being incompetent with costs to the applicant to be paid by the counsel for the applicant.

26. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF MARCH, 2023. F. MUCHEMIJUDGERuling delivered through videolink this 2ndday of March, 2023