[2023] KEHC 25371 (KLR)

In re Estate of Benson Mbatiah Muya (Deceased) (Probate & Administration E051 of 2006) [2023] KEHC 25371 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25371 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration E051 of 2006

JRA Wananda, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF THE LATE BENSON MBATIAH MUYA

Between

Elly Kuria Mbatiah

Applicant

and

Johnson Kahira Mbatiah

1st Respondent

Charles Wanyoike Mbatiah

2nd Respondent

and

Elizabeth Jepchumba Tunoi

Interested Party

Ruling

1. The Application herein seeks Review of orders earlier given in this Cause on 7/11/2019.

2. The background of the matter is that the deceased, Benson Mbatiah Muya died on 22/10/2010 at the age of 83 years. He left behind a widow, Sarah Wanjiku Mbatiah and 4 children, namely, Reuben Kamanu Mbatiah, Johnson Kahira Mbatia (1st Respondent), Elly Kuria Mbatiah (Applicant) and Charles Wanyoike Mbatiah (2nd Respondent). The deceased also left behind a number of parcels of land.

3. On 27/03/2006, the widow, Sarah Wanjiku Mbatia applied for Grant of Letters of Administration Intestate in respect of the estate. Such Grant was then issued by the Court on 16/08/2006, was subsequently confirmed on 16/03/2009 and the estate distributed.

4. However, on 23/03/2009, the present 2nd Respondent, Charles Wanyoike Mbatiah applied for revocation of the grant claiming that he was never consulted and that the Grant was obtained fraudently. He also challenged the mode of distribution adopted. In the intervening period and before the Application could be heard, the widow-sole Administrator died in March 2013, thus rendering the Grant inoperative.

5. Pursuant to confirmation of the Grant, one of the parcels of land, Uasin Gishu/Kimumu/2373 vested to the joint ownership of the Applicant and the 1st Respondent, Elly Kuria Mbatiah and Johnson Kahira Mbatia, respectively. The duo then transferred the parcel into their name and subsequently, sometime in the year 2015, sold the same at a purchase price of Kshs 8,000,000/- to the interested party, Elizabeth Jepchumba Tunoi who in turn, obtained a title in her name.

6. Pursuant to an Application filed by the 2nd Respondent on 19/08/2015, the Court (S.M. Githinji J) on 7/11/2019 ordered that the said property, Uasin Gishu/Kimumu/2377, do revert to the estate and also that the Applicant and the 1st Respondent, Elly Kuria Mbatiah and Johnson Kahira Mbatia, respectively, do, inter alia, deposit the purchase price in a joint interest earning account. Upon failure by the duo to comply with the order to deposit the purchase price, a Notice was issued to them on 15/01/2020, to show cause why they should not be committed to civil jail.

7. In response, by the Application dated 6/02/2020 the duo sought leave to appeal out of time against the decision and for such leave to operate as a stay of all proceedings in the Cause. The Application was dismissed on 30/11/2020.

8. Now before Court for determination is the Application brought by way of the Notice of Motion dated 16/11/2021 and filed by the Applicant, Elly Kuria Mbatiah, through Messrs J.M. Kimani & Co. Advocates. The prayers sought are as follows:i.[………] Spent.ii.That the Honourable Court’s orders directing the Applicants to deposit the purchase price into joint earning account be reviewed and or set aside.iii.That this Honourable Court be pleased to allow the Applicant to deposit Title number Waitaluk/Mobonde Block 12/Sirende/474 with the Court as security.iv.[………..] Spentv.Costs of this Motion be provided for.

9. The Application is stated be brought under Section 76(e) of the Law of Succession Act, Rule 73 of the Probate and Administration Rules and “all other enabling provisions of the law”. It is premised on the grounds stated on the face thereon and is supported by the Affidavit sworn by the Applicant.

10. In the Affidavit, the Applicant deponed that the Court heard this matter in his absence and delivered a Ruling, the Court ordered that he deposits Kshs 8,000,000/= in a joint interest earning account, on 6/02/2020 his previous Advocate filed an Application for leave to appeal out of time but the same was disallowed by the Court, he was ordered to deposit the amount within 60 days from 24/09/2021, he is aggrieved by the order since the amount is substantial and the property is inherited from his parents and cannot be disposed of since the Applicant has placed inhibition against the title and that the Grant was revoked by the Court since they have not agreed on who to administer the estate

Response to the Application 11. The Application is opposed vide the Replying Affidavit sworn by the 2nd Respondent, Charles Wanyoike Mbatiah and filed on 1/12/2021 through Messrs Wambua Kigamwa & Co. Advocates. In the Affidavit, the 2nd Respondent deponed that the Application is a clear violation of Rule 49 of the Probate and Administration Rules, the order sought to be reviewed was made on 7/11/2019 while the present Motion was filed on 17/11/2021 which is over 2 years later, the Applicant fails the test of bringing the Application without unreasonable delay as required in Order 45 Rule 1 of the Civil Procedure Rules, the Applicant cannot substitute the decision of the Court to suit his convenience, the Court is functus officio, the Applicant can sell the land parcel known as Waitaluk/Mobonde Block 12/Sirende/474 (whose title he proposes to deposit) and deposit the proceeds in Court.

Hearing of the Application 12. The Application was canvassed by way of written Submissions. Pursuant to directions given, the Applicant filed his Submissions on 8/12/2021 while the 2nd Respondent filed on 21/06/2022.

Applicant’s Submissions 13. Counsel for the Applicant submitted that the 2nd Respondent filed the Summons dated 19/08/2015 seeking among others, orders that the Applicant be restrained from carrying on any dealings in respect of the assets (parcels of land) of the deceased, that the said assets/plots revert or be restored to the estate, that the Applicant do account to the estate and its beneficiaries for the proceeds arising from the sale of the parcel of land Uasin Gishu Kimumu/2373 and deposit the proceeds in Court or in an interest earning account and that the Grant of Letters of Administration made to one Serah Wanjiku Mbatiah on 16/08/2006 and confirmed on 13/02/2009 be revoked or annulled.

14. Counsel submitted further that the Application proceeded ex pate without the participation of the Applicant and Ruling was delivered on 7/11/2019, the Court granted all the prayers sought, after receiving a copy of the Ruling and Notice to Show Cause, the Applicant filed an Application seeking leave to appeal but the same was dismissed and that subsequently, by the orders made by the Deputy Registrar, the Applicant was granted 60 days to comply.

15. Counsel added that the amount to be deposited being Kshs 8,000,000/- for the Applicant and the 2nd Respondent, it technically means that the Applicant is supposed to deposit Kshs 4,000,000/-, the value of the property which the Applicant seeks to deposit in substitution is Kshs 7,500,000/-, the money ordered to be deposited belongs to the estate, after distribution of the estate, this amount will be taken into account and therefore the 2nd Respondent will not be prejudiced in any way and that the Applicant has been unable to raise the funds and/or get a buyer for the property.

16. Regarding the 2nd Respondent’s contention that the Motion offends Rule 49 of the Probate and Administration Rules, Counsel argued that Article 51 and 21 of the Constitution requires the Courts to administer justice without undue regard to procedural technicalities. On the allegation of delay to file the Application, Counsel responded that the Court did not order any timelines for depositing the money and cited the case of Estate of Omur Abdalla Taib [2017] eKLR.

2nd Respondent’s Submissions 17. Counsel for the 2nd Respondent submitted that Order 45(1) of the Civil Procedure Rules demands that any Application seeking review of a Judgment or Order must be made without unreasonable delay, the Application has not been brought without unreasonable delay, no reason for the delay of over 2 years has been advanced, the Motion is an afterthought and has been brought as a reaction to the consequences of committal to civil jail. He cited the cases of Godfrey Wanjala Wafula & Another v Jairus Wakhungu Mulunda [2020] eKLR.

18. Regarding the prayer that the Applicant do substitute the order by depositing a title deed instead of the amount of Kshs 8,000,000/-, Counsel submitted that the issue has already been litigated upon, that on 24/09/2021 the Applicant made the same prayer before the Deputy Registrar who declined it and directed that failure to deposit the amount will warrant committal to civil jail. He added that the Court is now functus officio and cited the case of Election Petitions No. 3, 4 & 5, Raila Odinga & Others vs. IEBC & Others [2013] eKLR cited with approval in the article by Daniel Malan Pretorius. He also cited the case of Jersey Evening Post Limited v Al Thani [2002] JLR 542.

19. Counsel submitted further that bearing in mind that the Court had already denied the same prayer, it would be prudent for the Applicant to now sell the land parcel whose title he wishes to deposit as security and deposit the proceeds as ordered by the Court.

20. In conclusion, he added that if the Applicant was aggrieved by the decision of the Court, then he ought to have appealed, as opposed to seeking a Review. He cited the case of Abasi Belinda v Fredrick Kangwamu & Another [1963] E.A. 557.

Analysis and Determination 21. Upon examination of the Pleadings, Affidavits, Submissions and the entire Record, I find the issue that arises for determination in this Application to be “whether the orders given herein on 7/11/2019 should be reviewed”.

22. Review of orders in a Succession Cause is governed by Rule 63(1) of the Probate and Administration Rules, which provides as follows:“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.

23. It is therefore clear from the foregoing that the only provisions of the Civil Procedure Rules imported to the Law of Succession Act are those listed above and which includes Order 45 of the Civil Procedure Rules which relates to Review (see John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR).

24. In the circumstances, any party seeking review of orders in a probate or Succession matter, must meet the requirements set under Order 45(1). The same provides as follows:“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.

25. It is therefore clear that Order 45 provides for three circumstances under which an order for review can be made. The first one is that the Applicant must demonstrate that there has been discovery of new and important matter or evidence. The second is where there has been a mistake or error apparent on the face of the record. The third ground is as “for any other sufficient reason”.

26. The Applicant has not disclosed the ground under which he has approached the Court but clearly it is not on account of “discovery of new evidence” nor “mistake or error”. It can only therefore presumably be the third ground, namely, “for any other sufficient reason”.

27. Counsel for the 2nd Respondent submitted that Order 45(1) demands that any Application seeking a review of an Order must be made without unreasonable delay. He argued that having been filed more than 2 years after the order sought to be reviewed was given, the Application was filed after an unreasonable delay.

28. It is true that the impugned Ruling was made on 7/09/2019. It is also true that the present Application seeking review of the said order was filed on 18/09/2021. Clearly this was in excess of 2 years. Without any explanation over this time lapse, I find that indeed, the Application was filed after an inordinate and unreasonable delay thus breaching the requirement stipulated under Order 45(1) above.

29. It is also true that after the impugned order was given on 7/11/2019, the Applicant filed the Application dated 6/02/2020 seeking leave to appeal out of time. The Application was dismissed on 30/11/2020. In his Ruling, S. Githinji J stated as follows“Whether the application has been made without unreasonable delayThe ruling was delivered on 7th November 2019. The application was made on 6th February 2020, close to three months after. They have attributed the delay to the fact that they were unrepresented as their advocate had ceased acting and thus they were unaware of the orders. A perusal of the ruling indicates that there was no advocate for the respondent on the day of the ruling.In re Estate of Margaret Njambi Thuo (Deceased) [2020] eKLR the court held as follows on unreasonable delay;The applicant has not bothered to explain the delay of two months. What is considered as unreasonable delay will vary from case to case. In Jaber Mohsen Ali’s case, the court said as follows:“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after Judgment could be unreasonable delay depending on the Judgment of the court and any order given thereafter.” The Judge went ahead to state that ……. “In the case of Christopher Kendagor v Christopher Kipkorir, Eldoret ELC No.919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied. The court holding that, the application ought to have come before expiry of the period given to vacate the land.”I find that three months is too long a period to not have followed up on the matter. Further, their advocates while filing an application to cease acting touted the fact that the applicants were not picking their calls or communicating with them. In the premises I find that the delay was unreasonable. The litigants were clearly dragging their feet and ignoring the matter.”

30. On the same subject of depositing the purchase price therefore, the Applicant has already been found to have been guilty of unreasonable delay to approach Court for Review. In his Ruling, Githinji J found that the delay of 3 months was unreasonable. In the present Application, that delay of 3 months has since escalated to over 2 years. If 3 months was already found in this very matter and subject to have been inordinate, how can this Court now contradict that earlier finding and declare a delay of over 2 years to be reasonable?

31. The Applicant has not at all addressed or given any reasons for the delay in filing the Application for review. In the absence of any explanation, I find that the delay is gross and unreasonable.

32. The 2nd Respondent has also correctly submitted that, in any event, the prayer that the Applicant be allowed, in substitution, to deposit a title deed instead of the amount of Kshs 8,000,000/-, had already been litigated upon before the Deputy Registrar. I agree with this Submission since the record shows that indeed, the same prayer was placed before the Deputy Registrar when the Notice to show cause came before her. The Deputy Registrar delivered a reasoned Ruling on 24/09/2021 whereof she declined the prayer and granted the Applicant a period of 60 days to deposit the funds as ordered by Githinji J.

33. The said directions by the Deputy Registrar not having been challenged, and this Court not having been moved to set aside the same, the directions remain a valid and lawful order upon which this Court has no reason to interfere.

Final Orders 34. In the premises, the Notice of Motion dated 16/11/2021 filed by the Applicant, the said Elly Kuria Mbatiah is hereby dismissed with costs to the 2nd Respondent, the said Charles Wanyoike Mbatiah.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 17TH DAY OF NOVEMBER 2023WANANDA J. R. ANUROJUDGE