[2023] KEHC 25498 (KLR)

In re Estate of Daniel Kinuthia Mugia (Deceased) (Succession Cause 982 of 2007) [2023] KEHC 25498 (KLR) (Family) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25498 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 982 of 2007

EKO Ogola, J

November 16, 2023

In the matter of

Monicah Wanjiku Kinuthia

1st Applicant

John Mureri Kinuthia

2nd Applicant

George Battai Kinuthia

3rd Applicant

Moses Ngungi Kinuthia

4th Applicant

Ruling

1. What is before this Court is an Application dated 24th July, 2023 filed by the beneficiaries of the Estate of Daniel Kinuthia Mugia (Deceased). The Applicants pray for the following orders: -a.This file be re-opened for purposes of rectification of grantb.George Battai Kinuthiaand Moses Ngugi Kinuthiabe appointed as the Administrators of the Estate in addition to Monicah Wanjiku Kinuthiaand John Mureri Kinuthiaand a fresh grant be issued to themc.That the confirmation of Grant issued on 8th July 2019 be amended and rectified to include the land parcel known as Dagoretti/ Uthiru/999d.That the costs of this application be in the cause.

2. The Application is based on the grounds set out therein and the Applicants’ joint Supporting Affidavit. Daniel Kinuthia Mugia (Deceased) died intestate on 22nd May 2001 and was survived by his widow Monicah Wanjiku Kinuthia and three sons namely John Mureri Kinuthia, Moses Ngugi Kinuthia and Julius Njoroge Kinuthia (now deceased, since 13th December 2006). Julius Njoroge Kinuthia was survived by his son, Daniel Kinuthia Mugia (minor).

3. On 6th August 2007, Monicah Wanjiku Kinuthia and John Mureri Kinuthia were issued with the Grant of Letters of Administration Intestate of the Estate of the Deceased. The grant was subsequently confirmed on 8th July 2019 and later rectified on 15th July 2020 to include Daniel Kinuthia Njoroge the son of the late Julius Njoroge Kinuthia.

4. When the grant was Confirmed, the land parcel known as Dagoretti/Uthiru/999 was not included. The applicants have averred that the said property was erroneously left out. Annexed to the Application is consent from all the beneficiaries on the new mode of distribution. There is also a copy of the Title as proof that the parcel of land belonged to the deceased.

Determination 5. I have considered the Application, the annextures, and the entire record of the Court.

6. The applicants have prayed for the re-opening of the file since it was closed on 22nd May 2018 for want of prosecution. The constitutional underpinnings on the conclusion of matters in a timely manner is contained in Article 159 (2) (b) of the Constitution. It is the duty of the court, litigants, as well as advocates, to ensure that matters are concluded expeditiously without inexcusable delay. The factors taken into account or consideration for the purpose of reinstatement of suits are numerous, and were addressed in Ivita v Kyumbu [1984] KLR 441 where the court stated:“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

7. Reinstatement of a suit is at the discretion of the court, which discretion ought to be exercised in a just manner. The Applicants’ reasons for delay in prosecuting the matter is that the administrator had not completed the distribution of the estate since they have just discovered property that had been omitted from the already confirmed grant. I hereby re-open the file as prayed.

8. The Applicants also pray for review of the confirmed grant. A review of a Ruling or judgment of the court is not provided by the Law of Succession Act. However, Rule 63 provides for the import of the provisions of the Civil Procedure Rules. Rule 63 stipulates as follows:-“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 Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (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.”

9. Therefore, the 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. 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. Order 45 p:ovides that”“1(1)Any person considering himself aggrieved—(a)…(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.”

10. The Applicants deposed that the land parcel Dagoretti/Uthiru/999 was left out by error during the Confirmation of Grant and that the other beneficiaries were not aware of its existence and came to learn of it much later. From the provision of Order 45 aforementioned, the Applicants base their application on the discovery of new and important matters that were not within their knowledge at the time the grant was being confirmed. From the foregoing, the erroneous omission of Land Parcel Dagoretti/Uthiru/999 is sufficient ground that warrants a review of the Certificate of Confirmation of Grant.

11. The Applicants also pray that George Battai Kinuthia and Moses Ngugi Kinuthia be appointed as co-administrators of the estate alongside Monicah Wanjiku Kinuthia and John Mureri Kinuthia. It is deposed that George Battai Kinuthia is also the son of the deceased. Section 56 of the Law of Succession Act provides that a grant should not be issued to more than four people. The administrators have consented to the inclusion of George Battai Kinuthia and Moses Ngungi Kinuthia as co-administrators. From the foregoing, George Battai Kinuthia and Moses Ngugi Kinuthia are hereby appointed as administrators of the estate of the deceased.

12. The upshot is that the Summons for Review dated 24th July 2023 is hereby allowed as prayed. Costs be in the cause.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF NOVEMBER, 2023. E.K. OGOLAJUDGEIn the presence of:Ms. Kemunto for the ApplicantGisiele Muthoni Court Assistant