[2023] KEHC 26592 (KLR)

In re Estate of Daniel Njogu Macharia (Deceased) (Succession Cause 7 of 2017) [2023] KEHC 26592 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26592 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 7 of 2017

MW Muigai, J

December 13, 2023

(FORMER NAIROBI SUCCESSION CAUSE NO. 1892 OF 2011) IN THE MATTER OF THE ESTATE OF DANIEL NJOGU MACHARIA DECEASED

Between

Joel Kabiu Njogu

Applicant

and

Mary Nduta Njogu

1st Respondent

Pauline Wanjiku Njogu

2nd Respondent

Ruling

Introduction 1. Vide a petition dated 22nd November,2011 and filed in court on 7th December,2011, wherein the petitioners Mary Nduta Njogu and Pauline Wanjiku Njogu petitioned this Court for a grant of Letters of Administration intestate of the estate of Daniel Njogu Macharia (deceased) who died on 27th May,1992 as per death certificate and domiciled in Kenya.

2. As per the Affidavit in support of Petition for Letters of Administration Intestate, the deceased died intestate and left the following surviving him; -[as per Chief of Ithanga Location letter of 9/8/2011Gladys Wanjiku Njogu 1St Wife- (deceased)a.Janet Wanjiru Njogu- Daughterb.Esther Waringa Njogu- Daughterc.Hannah Muthoni Njogu- Daughterd.Joel Kavyu Njogu- SonMary Njoki Njogu- 2Nd WifePauline Wanjiku Njogu- 3Rd Wifee.John Gitau Njogu- Sonf.Peter Kamande Njogu- Song.Simon Kambo Njogu- Sonh.Mary Wanjiru Njogu- Daughteri.Joan Wachuka Njogu- Daughterj.Bernard Ndung’u-son

Background 3. The background of this matter is as follows;a.Succession Cause 1892 of 2011 [estate of Daniel Njogu Macharia] was filed in Nairobi High Court.b.On 29/1/2013the Trial Judge L.Kimaru confirmed grant and distributed the estate to Mary Njoki Njogu & Pauline Wanjiku Njogu [2nd & 3rd Wives of deceased as pleaded in the Petition]c.The Application for Revocation/Annulment of Grant was filed by Applicant son of the deceased Joel Kabiu Njogu.d.By Ruling of 3/2/2017, Hon W.Musyoka J declared that the matter should be determined by viva voce evidence and not written submissions. Secondly, the suit property Machakos /Ndithini/Phase 2/209 was/is in Machakos County and the matter was transferred to be heard and determined in Machakos High Court.e.The hearing commenced before Hon. D. K. Kemei J on 4/12/2019 in Machakos High Court and heard ObjectorPW1 Joel Kabiu Njogu.f.This Court took over the matter on 24/11/2021 and proceedings were typed and copies of typed proceedings were availed to parties herein.g.Further Hearing proceeded on 20/3/2023 with the evidence of DW1Pauline Wanjiku Njogu. During her testimony she referred this Court to her statement and documents in a bundle that was not in the Court file at the time.h.The bundle was later availed during the proceedings at cross examination of the witness, whereat Mr. Kituku, Counsel for the Objector raised objection to the production of the bundle of documents as it contained Witness Statements of 2 witnesses and documents apart from the ones allowed by the Court. Secondly, Mr Kituku stated that the 2 Witness statements were prejudicial to their case.i.This Court admitted only documents that were filed as per the Court orders of 4/12/2019. j.Mr. Kituku reiterated that accepting the whole bundle would not be fair as the Objector closed his case and to introduce new witnesses at this stage of the tail end of the matter is prejudicial and Ruling date on the substantive application of revocation of grant be given. Parties were to file written submissions to the application with mention date of 29/5/2023.

Summons 4. However, before written submissions on the substantive Application were filed; vide Summons under Certificate of urgency dated and filed in court on 28th April,2023, brought under Section 47 Law of Succession Act, Rule 49 of the Probate and Administration Rules and Articles 3 (1), 25 (c) and 48 of the Constitution of Kenya; the Applicant sought the following orders THAT:1. This application be certified urgent and therefore heard on priority basis.2. Leave be granted allowing the witnesses, whose witness statements were filed on 14th March, 2023 and 28th April, 2023 to be heard in this matter.3. The costs of this application be in the cause.

5. Grounds upon which this application is premised are on the face of the said application.

Supporting Affidavit 6. Under Supporting Affidavit sworn by Pauline Wanjiku Njogu, the applicant herein deposed that following the death on her husband her and co-wife, Mary Nduta Njogu (deceased), petitioned and were issued letters of Administration intestate to the deceased’s estate which letters were confirmed on 29th January,2013.

7. Deposing that the Respondent herein later filed Summons for revocation of grant dated 8th August,2013 disputing the mode in which the said grant was obtained and further disputing her status as a widow to the deceased herein.

8. It was her position further that by a ruling delivered on 30th February,2017, by W. Musyoka Judge, directions were issued to have the said application disposed of by way of both affidavit and oral evidence (annexed and marked copy of the ruling).

9. She deposed that the witness statements by Simon Kinyanjui Njogu, Francis Njaramba Njogu, Benard Ndung’u Gitau and Wanjiru Kinywa filed on 14th March,2023 are aimed at fulfilling the court’s directions, to allow a just determination of her marriage to the deceased herein. It was further deposed that the best interest of justice and in fulfillment of one’s constitutional right to fair trial and access to justice that this Court does allow the prayers sought.

Replying Affidavit 10. The Application herein was opposed vide a Replying Affidavit dated 25th May,2023 and file in court on 29th May,2023, sworn by Joel Kabiu Njogu, the Respondent herein, wherein, he deposed inter alia that the said application is at the epitome of being frivolous and vexatious brought at the tail end of the case whereby the same prayers were orally made in court on 20/4/2023 upon which his advocate on record objected to the same and this Court sustained the objection and ordered parties to file submissions hence the application is res- judicata and merely meant to derail the course of justice.

11. It was his position that allowing the application will greatly prejudice him as this matter which commenced way back in the year 2011 in Nairobi a period of 12 years now will basically be starting afresh to his detriment as the applicant is solely utilizing the subject land and gaining from the fruits of his mango trees herein.

12. According to the Respondent, the Applicant states that the witnesses are to prove her marriage which he believes is beside the point and the same issue can be canvassed at the time of proper confirmation of the grant once revoked for every party to ventilate their case.

13. He deposed that the elephant in the room at this point is that he is admittedly a beneficiary herein and indeed listed as one together with her siblings but his siblings and never signed any consent to petition or confirmation and distribution being completely left out and disinherited at the time of confirmation.

14. The matter was canvassed by written submissions

Submissions The Applicant’s Written Submissions 15. The Applicant in her submissions dated 6th June,2023 and filed in court on 22nd June, 2023, wherein counsel for the Applicant submitted that the ruling by Justice Musyoka was succinctly clear, proof of marriage by oral evidence is absolutely necessary in this matter. Contending that it is that said evidence that the Applicant herein wishes to bring to Court in whole.

16. Counsel submitted that natural justice requires that a party is afforded opportunity to present the whole of their case to court. it would be grave injustice if the applicant herein is gagged by being denied opportunity for her witnesses to be heard as the Respondent proposes through replying affidavit dated 25th May,2023.

17. It was submitted that the Constitution of Kenya at Article 48 provides for access to justice as a human right. A party cannot access justice unless they are given opportunity to present all their witnesses in court. Contending that Article 50 of the Constitution provides for right to a fair hearing and that a party cannot be said to have been afforded a fair hearing if his or her witnesses are not allowed to testify. It is the Applicant’s plea that this court will find it met and just to allow all witnesses recorded by the Applicant to be heard.

Respondent’s Submissions 18. Respondent in his submissions dated and filed in court on 26th June,2023, wherein counsel for the Respondent submitted that the Application herein was opposed vide a Replying Affidavit dated 25th May,2023 and file in court on 29th May,2023, sworn by Joel Kabiu Njogu, the Respondent herein, wherein, he deposed inter alia that the said application is at the epitome of being frivolous and vexatious brought at the tail end of the case whereby the same prayers were orally made in court on 20/4/2023 upon which his advocate on record objected to the same and this Court sustained the objection and ordered parties to file submissions hence the application is res- judicata and merely meant to derail the course of justice

19. It was the position of the Respondent that at the close of the respondent’s case in his aforesaid application for revocation of grant way back on 4/12/2019, the Applicant was solely given leave to file and serve a supplementary list of documents alluded to in their replying affidavit as the same had not been attached and they were certainly not allowed to bring additional witnesses hence such additional statements were unlawfully filed without leave.

20. Counsel further submitted that allowing the application will greatly prejudice him as this matter which commenced way back in the year 2011 in Nairobi a period of 12 years now will basically be starting afresh to his detriment as the applicant is solely utilizing the subject land and gaining from the fruits of his mango trees herein.

21. Contending that applicant states that the witnesses she wants to bring in are to prove her marriage which is beside the point and the same issue can be canvassed at the time of proper confirmation of the grant once revoked for every party to ventilate their case. Opining that it would be totally unfair to the Respondent to allow the applicant to mutate her case whilst he long closed his and it was prayed that the application be dismissed in the interest of justice and the court to proceed to render its ruling on this matter.

Determination/analysis 22. The Court considered the instant application by the Applicant on whether or not to admit additional evidence of 2 witnesses at the hearing of the Respondent after the close of the Objector’s case.

23. The Trial begun before and it was presumed that during case management discovery was conducted; parties exchanged witness statements and/or documents.

24. On taking over the matter, this Court granted leave to the Respondent/Applicant to file documents and serve. On the hearing date the bundle of documents was not availed to the Court nor in the Court file. Later on, during hearing of DW1Pauline Wanjiku Njoki, the Respondent, it is during the hearing of the Respondent that the bundle was availed and Counsel for Objector raised objection. Clearly, this was an ambush by the Respondent’s advocate to the Objector’s advocate, non -disclosure of 2 Witness Statements without informing the Court and seeking leave to include these Statements and serving the Objector’s advocate before hearing.

25. The role of the Court and the law on fair hearing, on recall of witnesses and/or admission/dismissal of additional evidence is as follows;The Constitution, Article 50(1), provides for fair hearing with regard to any dispute that has to be resolved in accordance with the law. It states as follows:"50. (1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”Section 1B [CPA]Duty of Court(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings(b)The tenets of a fair hearing.....Section 3A [CPA] Saving of inherent powers of court.Nothing in this Act 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.Section 22 [CPA]Power to order discovery and the like, Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—(a)make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects, producible as evidence;(b)issue summonses to persons whose attendance is required either, to give evidence or to produce documents or such other objects as aforesaid;(c)order any fact to be proved by affidavit.In Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2019] eKLR, Justice R. Nyakundi observed;This ruling arises out of an objection raised by Learned Counsel Mr. Nyaosi for the plaintiff on the production of a witness statement for the defence from Tuskys within the trial of the claim when the plaintiff had already closed its case. The contours of Civil due process are the bedrock principle that a trial of the claim must precede judgement cannot be over emphasized. At the heart of Article 50 of the constitution is the notice - hearing approach and due process before an independent tribunal which simply underpins the foundation of our adversarial system of justice. Under the constitution and Civil Procedure Act and rules a model of procedural fair administration of justice highlights the following components:(1)Participatory procedures in the proceedings(2)An independent and competent umpire or adjudicator(3)Prior due process before judgement(4)Continuity fair trial rights to attach at all stages of the hearing.We are not saying here that the civil due process imports the entire highly developed criminal procedure policy guidelines into the Civil Procedure setting. But in surveying the constitutional landscape both approaches benefit from the implicit right to a fair hearing model in litigation of the dispute or indictment. In the context of the objection raised by counsel for the plaintiff urging this court not to admit additional witnesses’ statement on grounds that case for the plaintiff has closed its case.In the case of Hannah Wairimu Ngethe v Francis Ng’ang’a & Another {2016} eKLR, Lady Justice Achode declined to allow a petitioner in a Succession Cause to reopen the case to adduce further evidence. The Judge in the case inter alia stated:The court has also not been told where the Applicant has been for the last eight years since this cause was filed yet she was aware of it according to the Objector and has even had occasion to attend court in that regard.In my view this is an attempt by the Petitioner to have a second bite at the cherry. If he is allowed to re-open his case so as to prove it this would amount to allowing him to fill the gaps in his evidence after having heard the Objector’s case. That would be prejudicial to the Objector. - See Mombasa HCCC No. 37 of 2007 Samuel Kiti Lewa v HFCK Ltd James M. Kagete.In the premise it is my considered view that allowing any of the two applications set out above would not only be prejudicial to the Objector but would also amount to an abuse of the court process.Both applications are therefore declined.In Raindrops Limited v County Government of Kilifi [2020] eKLR, R. Nyakundi JBoth the Civil Procedure Rules and the Evidence Act do not have clear and express framework on how that jurisdiction is to be exercised. Section 146 (4) of the Evidence Act generally grants the Court powers to recall a witness .....Similarly, Order 18 Rule 10 of the Civil Procedure Rules grants the Court powers to recall any witness who has been examined .....Article 159 (2) (d) of the Constitution of Kenya provides that justice shall be administered without due regard to procedural technicalities."

26. This Court in applying the above provisions and case-law to the instant matter considers the following factors, this matter has been in the justice system since 2011, 13 years now, oscillating from High Court Nairobi to Machakos High Court. The matter commenced hearing and was adjourned severally due to unforeseen circumstances, by the Court and/or parties. The matter is at the tail-end and ought to be expeditiously concluded.

27. However, the duty of the Court to determine and conclude the matter must with adherence to tenets of fair hearing mandated by the Constitution; that disputes are resolved by the application of law decided in a fair and public hearing The Civil process requires compliance with tenets of a fair hearing and the just determination of the proceedings.

28. Therefore, whereas the matter is delayed, the duty is to ensure that the Court and parties expedite and at the same time observe fair hearing, right to be heard, not condemned unheard, full participation of parties and due process.

29. The decision whether or not to allow the 2 Witness Statements in the bundle of documents which this Court was not notified of nor served to the Objector’s Counsel without prejudice to the Objector who closed his case and /or re-open an on-going case and allow the Objector on being served with the 2 Witness Statements is allowed to reopen his case and tender additional evidence is purely left to the realm of judicial discretion to albeit to be exercised judiciously and in the interest of justice.

30. I have considered the competing legal issues/rights of both the Objector and Respondent and find that the issue of allegation of woman- to- woman marriage between Mary Nduta Njogu and Pauline Wanjiku Njogu and the children thereof being the deceased’s or not or that Pauline Wanjiku Njogu was married to the deceased under Kikuyu customary law and the children are the deceased is a hotly contested issue in these proceedings. This issue is subject to proof as required by Section 107-109 of Evidence Act; through evidence being adduced ie viva voce evidence and tested through cross examination on its veracity and credibility of the witnesses.

Disposition 31. The justice of the case demands fair hearing over expedition of the matter. Consequently, the application to call 2 witnesses who made 2 witness Statements included in the bundle of Documents is granted.

32. The Application is allowed to ensure no prejudice is occasioned on the Objector by the ambush/surprise new additional evidence after close of his case; on condition that the Objector upon service of the 2 Witness Statements may consider and reopen his case and may also avail further evidence and have Witness Statement(s) of his Witness(es) and serve the Respondent.

33. The case management shall be done between now and 25/1/ 2024 when the matter will be mentioned before DR MHC.

34. Then the parties will avail their intended witnesses to testify and conclude on the next hearing date to be mutually taken by both parties in Court.

35. FMD in Court 1 on 8/2/2024.

36. The applicant will also pay the respondent costs occasioned by the application.It is so ordered.

RULING DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 13/12/2023. (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGE