[2022] KEHC 16293 (KLR)

In re Estate of Ashby Musila Muia (Deceased) (Probate & Administration 451 of 2017) [2022] KEHC 16293 (KLR) (13 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16293 (KLR)

Republic of Kenya

In the High Court at Kisumu

Probate & Administration 451 of 2017

RE Aburili, J

December 13, 2022

IN THE MATTER OF THE ESTATE OF THE LATE ASHBY MUSILA MUIA IN THE MATTER OF AN APPLICATION BY

Between

Josephat Mwania Muia

Petitioner

and

Loice Atieno Oduk

Objector

and

Kenya Power Pension Fund

Proposed Interested Party

Ruling

1. The Kenya Power Pension Scheme filed the instant application dated February 25, 2019 seeking orders to be admitted into this succession cause as an interested party and costs to be in the cause.

2. Steve Mathuka, the applicant’s Pension Administration Manager, swore an affidavit in support of the application and avers inter alia that the applicant was on December 4, 2017 served with an order emanating from Makueni SRM’s court in Probate and Administration Cause No 42 of 2016 requiring the applicant to among other directions pay the petitioner Josephat Mwania all the benefits due to the deceased to be held in trust for BMM a minor [initialize to BMM]]awaiting the attainment of majority age by the said minor.

3. Subsequently, the objector Loice Atieno Oduk filed an application at Makueni High Court on July 26, 2017 seeking orders of revocation of grant so issued to the petitioner herein citing the reason that the grant had been obtained through concealment of material facts.

4. The applicant therefore avers that in light of the afore stated dispute over the estate of the deceased being that the grant so issued to Josephat is strongly contested with the possibility that contempt proceedings may be instituted by the petitioner against the applicant for want of compliance with the order served on them on December 4, 2017.

5. The applicant avers that it is therefore necessary that it be admitted into these proceedings so as to monitor the proceedings with a view of ensuring the preservation of the estate of the deceased until the sums due are released to the rightful personal representative of the estate of the deceased.

6. The petitioner Josephat Mwania filed grounds of opposition and a replying affidavit through WM Gichaba Advocate deposing in contention that the applicant has failed to honour the court order 2 years down the line despite the petitioner visiting their offices on several occasions and that the applicant should first obey the order before any other orders are given. He deposes that the applicant does not fit the title of an interested party.

7. By directions of the court, the matter was canvassed by way of written submissions.

8. On the issue of jurisdiction, the applicant submitted that this court has the requisite jurisdiction by dint of articles 165 3(a) and (b) of the Constitution and section 47 of the Law of Succession Act, (cap 160). It was further submitted that the objector having filed her summons for revocation of the grant in this court, it is proper for the applicant to be joined into these proceedings so that it can monitor the outcome thereof since the applicant is in custody of the monies forming part of the estate and which grant is strongly contested. That the interested party’s interest in the proceedings is not the order issued by the subordinate court as put by the petitioner.

9. On whether the interested party is in contempt of court orders, it was submitted that the law provides avenues for addressing contempt proceedings so much so that at the moment, there are no contempt proceedings against the applicant’s Pension Manager.

10. On the issue of whether the legal provisions cited have properly invoked the court’s jurisdiction, the applicant submitted that the application has been preferred pursuant to the provisions of order 1 rule 10 (2) of theCivil Procedure Rules, section 1A, 1B and 3B of the Civil Procedure Act and article 50 of the Constitution which provisions are sufficient to invoke the court’s jurisdiction. That in any event, the interested party cannot be locked out on the basis of citing of a different set of rules of procedure.

11. In support of this position, the case of SWK & 5 others v Medecines Sans Frontiers-France & 10 others (2016)eKLR and Thomas Ratemo Ongeri and 2 others v Zachariah Isaboke Nyaata and another-Kisii ELC 95 of 2004 were cited.

12. On the issue of whether the court has been rendered functus officio by the orders of July 12, 2018, the applicant submitted that there are no orders issued on the said date. That the only issue raised by the applicant is that of joinder and does not challenge the merits of any order issued in the matter. That all in all, there is no final determination in the matter on merit as was found in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others (2013) eKLR.

13. On the merits of the application, it was submitted that the applicant has satisfied the criteria for joinder due to the stake it has as custodian of the monies subject of these proceedings as espoused in SWK’s case (supra) and in Khalef khalifa v Republic & 3 others-criminal revision No 484 of 2012.

14. On the issue of the affidavit sworn by counsel, the applicant submitted that the facts raised in the affidavit sworn by the respondent’s counsel are contentious and which the advocate was not a party to and even liable for cross examination and renders the affidavit fatally defective. Counsel cited Nicholas Kipchirchir Kimaiyo v Wilson Kibet Kimutai & another (2014)eKLR and Barrack Ofulo Otieno v Instarect Limited (2015)eKLR in support.

15. On the issue of costs, it was the applicant’s submission that had it not been for the petitioner’s conduct, the application would not have been filed and that it is therefore pertinent that the petitioner pays the costs of the application.

16. On his part, the petitioner submitted on the aspect of jurisdiction that the orders in the matter were issued in Makueni PMCC 42 of 2016 and that if this court proceeds to hear the application, it will have usurped the jurisdiction of the subordinate court contrary to the provisions of article 162 and 159 (2)(e) of the Constitution.

17. On contempt of court, the respondent’s counsel submitted that the applicant’s manager has not complied with the orders issued by the subordinate court and therefore the applicant ought not to be heard until the contempt is purged. He urged the court to punish the applicant for disobedience of court orders.

18. On whether the court’s jurisdiction has been properly invoked, counsel for the petitioner/respondent submitted that the application falls within the provisions of cap 160 which has its regulations and that therefore any reliance on theCivil Procedure Rulesis erroneous. The case of Anthony M Njagi v Faith M Njagi & 2 others(2016)eKLR was relied on to advance this proposition.

19. On whether the court is functus officio, counsel submitted that upon the issuance of orders for the transfer of the matter to Kisumu, the petitioner filed an application staying the transfer. He then appealed to the court of appeal which application is pending. That since there are no orders setting aside the order, the court is functus officio.

20. On the contention that the application is an abuse of the court process, it was submitted that the applicant cannot purport to monitor these proceedings since this is a preserve of the court and that the intended interested party has no stake and hence it is merely avoiding contempt proceedings. The case of Talewa v Kenya National Highways Authority (209)eKLR and R v Maiyo & 3 others (2019)eKLR were cited in support.

21. On the issue of affidavit sworn by counsel, it was submitted that an advocate can swear to the facts personally known to him or information given to him by the party. That the affidavit has nothing contentious but facts of information gathered from counsel’s participation in the matter. That to the contrary, the applicant’s affidavit contains purely hearsay. Counsel relied on Gitau v Nthenge (2015) eKLR in support of that argument.

22. The objector/applicant submitted on the issue of jurisdiction that the court has jurisdiction to hear and determine the matter for 2 reasons; firstly, the petitioner’s application seeking stay of transfer of the suit to this court from Makueni High Court has never been heard and determined, secondly, that the petitioner’s appeal to the Court of Appeal to wit Nairobi Civil Appeal No 181 of 208 has never been heard. That an appeal does not act as stay of proceedings under order 42 rule 6 of the Civil Procedure Rules.

23. On the issue of the joinder of the applicant, it was submitted that the applicant has demonstrated a legal interest by virtue of being the custodian of the monies forming part of the estate and therefore the duty of preserving the estate. The case of Judicial Service Commission v Speaker of the National Assembly and another (2013) eKLR and Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others (2017) eKLR were relied on in support.

Analysis and Determination. 24. The petitioner petitioned the subordinate court for grant of letters of administration in this matter which grant was confirmed on June 5, 2017. Subsequently, by an application dated June 9, 2017, the petitioner sought a transfer of all the deceased’s shares held by the applicant to the petitioner to hold in trust for BM a minor surviving beneficiary of the deceased’s estate. An order to that effect was issued by the subordinate court the same date and served on the applicant.

25. On July 26, 2017, the objector filed summons for the revocation of the grant issued to the petitioner on the grounds that she is the deceased’s widow and that the grant had been obtained by way of concealment of material facts. She also filed an application dated August 25, 2017 seeking a transfer of the matter from Makueni High Court to the instant court. The application was allowed on April 12, 2018. The petitioner filed an appeal to the Court of Appeal which matter is still pending according to the petitioner.

26. Such is the chronology of events explaining how the matter ended up in this court all the way from the subordinate court to the High Court both in Makueni. I have also perused the file and as per the court’s ruling delivered by Ong’udi J on July 4, 2019, the issue of the court’s jurisdiction is wanting save for the fact that there is an appeal pending at the court of appeal which has not been determined and or, this court was not enlightened on its status. I am inclined to belief that the appeal has never been determined otherwise either of the parties could have said so.

27. In light of the above stated position, I will not delve into the issue of jurisdiction until a determination by the appellate court is rendered as a determination of the same would jeopardize the pending appeal and further complicate the matter. This court will only deal with the aspect of the applicant’s joinder into the proceedings. The other issues will await the superior court’s pronouncement whereupon, I trust this court will be appropriately moved.

28. A preliminary issue was raised by the petitioner that the application is anchored on the wrong provisions of the law and therefore fit for dismissal. The application is expressed to be preferred pursuant to the provisions of article 50 of the Constitution, section 1A, 1B and 3A of the Civil Procedure Act and order 1 rule 10 (2) of the Civil Procedure Rules. Detailed submissions on the point have been reproduced in the preceding paragraphs.

29. Article 50 of the Constitution guarantees every person the right to fair hearing while sections 1A, 1B and 3A are the overriding objectives enshrined in the Act and intended to afford litigants a just and fair determination of matters. On the other hand, order 1 rule 10(2) of the Civil Procedure Rules relates to joinder of parties and provides that:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

30. Cap 160 laws of Kenya is a self-governing statute through the enactment of the Probate and Administration Rules, 1980. These rules under rule 63 provides as follows:“(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, 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.”

31. From the above, it is clear that order 1 of theCPR is not one of the orders specifically imported into the Probate and Administration Rules. The overriding objectives similarly are not imported.

32. However, rule 73 of the Probate and Administration Rules saves the court’s inherent powers as follows:“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

33. Despite the fact that the said rule 73 was not cited by the applicant, I am of the view that this court is bound to pay homage to that provision as the custodian of justice.

34. As to whether failure to cite the correct legal provisions in an application is fatal to the applicant’s case, the Supreme Court in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone (2013) eKLR held that:“The question then is, whether this omission is fatal to the applicant’s case. It is trite law that a court of law has to be moved under the correct provisions of the law. We note that this court is the highest court of the land. The court, on this account, will in the interest of justice, not interpret procedural provisions as being cast in stone. The court is alive to the principles to be adhered to in the interpretation of the Constitution, as stipulated in article 259 of the Constitution. Consequently, the failure to cite [the relevant provision] will not be fatal to the applicant’s cause.”

35. In addition, article 159 of the Constitution mandates the court to administer justice without undue regard to technicalities of procedure. This however is not a blanket allowance for parties to throw rules of procedure out of the window but that the court in appropriate cases ought to administer substantive justice where the circumstances of the case dictate.

36. The test that I adopt is whether the failure to cite the specific applicable law was prejudicial to the petitioner. The court interrogates whether the petitioner has been subjected to unnecessary hardship through the failure to move the court under the correct legal provisions.

37. I have read the provisions of cap 160 as well as the rules thereunder and I am unable to find a specific provision making reference to an interested party, other than in summons for revocation of grants where any interested party may apply for revocation of grant under section 76 of the Act and therefore in the absence of such a provision, it cannot be said that a person who has an interest in a deceased’s estate is helpless. The court is bound to go out of its way and administer justice so long as no prejudice has been occasioned to the adverse party.

38. In the circumstances, I find and hold that the court’s jurisdiction has been properly invoked. The application is therefore sustained.

39. Another preliminary point raised is that of the replying affidavit sworn to by the petitioner’s counsel in opposition to the application. It is a settled position of law under order 19 rule 3(1) of the Civil Procedure that affidavits are a preserve of matters one prove as of his own knowledge. A risk emanating from such disposition is striking out of information containing hearsay and prohibited by order 19 rule 3(2). An affidavit sworn to by counsel raising contentious matters is liable to be expunged from the record.

40. The circumstances in the matter at hand relates to opposition to the applicant’s application. I have perused the replying affidavit of counsel and the contents therein are a chronology of the events relating to his personal conduct of the matter and which information he gathered from his conduct of the matter. The affidavit is largely about the service of the order on the applicant who failed to comply with the order.

41. The contention that the deponent of that affidavit may be subject of cross examination does not arise here for the reason that issues of service of the order upon the application is admitted in the applicant’s supporting affidavit.

42. It is my considered view that the affidavit is not contentious since the issue of service of the order is not in contest. Counsel largely deposed of facts within his knowledge by virtue of being in conduct of the matter.

43. Turning on to the application at hand, although the Law of Succession Act does not define who an interested party is, rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines the term thus:“a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”

44. Judicial pronouncements have given meaning to terms in several decisions thus. In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR the court defined the interested party as:“...one who has a stake in the proceedings, though he or she was not 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...”

45. Superior Courts have also set conditions that an applicant ought to satisfy before the enjoinment as was held inMeme v Republic (2004) 1 EA 124, that:“(i)Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;(ii)joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;(iii)joinder to prevent a likely course of proliferated litigation.”

46. As stated earlier in this ruling, cap 160 has no definition of an interested party. The court is therefore called upon to determine according to the parameters established whether an applicant such as the one herein has established an interest or stake in the subject matter so that its participation in the proceedings will ensure the ends of justice are met.

47. It is clear to this court that the applicant’s interest in this cause is not about keeping the money or not. It has stated that it is keen on having the money remitted to the rightful beneficiary at the end of the trial, but that at the moment, there are objection proceedings to determine whether the objector too, is a beneficiary of the estate of the deceased Both the objector and the petitioner lay claim to the money which the petitioner is keen on having access and so is the objector.

48. It is common ground that the applicant is in custody of money allegedly forming part of the estate to which the subordinate court had ordered be released to the petitioner to hold in trust for the minor, BM The applicant is apprehensive that unless it is admitted as an interested party, they are bound to comply with the order by releasing the money despite pendency of the objector’s application. This position is contested by the petitioner who claims that the applicant has no interest.

49. If the money is released to the petitioner as per the order, will the applicant be at fault? I think no, as the same will have been done in compliance with a court order. But for the fact that the money is held by the applicant and the applicant’s presence before this court will aid in complete adjudication of the matters in controversy, I find that the applicant’s joinder is merited.

50. Having contrasted the applicant’s position with the conditions enumerated in Meme case (supra), I find the applicant to have placed itself within the meaning of an interested party so that a complete adjudication of the issues raised can only be achieved if the applicant is admitted into these proceedings.

51. It is obvious that in this cause, the court will render a decision on whether the objector herein is rightfully entitled to benefit from the estate of the deceased alongside the minor who is represented by the petitioner herein. The final order will invariably touch the applicant as the custodian of the money that forms part of the deceased’s estate and which monies as per the documents presented before this court, was allegedly exclusively assigned to the minor as the sole beneficiary.

52. In the interest of justice, I find that to forestall a long-drawn battle for the monies held by the applicant and the history of this matter, the applicant is hereby admitted to these proceedings as an interested party only to the extent that its participation in the suit is limited to ensuring that the money is ultimately paid out to the rightful beneficiary as shall be determined by the court.

53. This being a family matter, I order that each party shall bear their own costs.

54. I so order.

Dated, Signed and Delivered at Kisumu this 13th Day of December, 2022R.E. ABURILIJUDGE