[2021] KEHC 3967 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE 62 OF 2000

IN THE MATTER OF: THE ESTATE OF ESHA MOHAMED ADAM(DECEASED)

ZEINAB KHALIFA SALIM

RAHMA KHALIFA SALIM

FATUMA MOHAMED SAID

SALMA MOHAMED SAID

ABDULKARIM MOHAMED SAID.............APPPLICANTS

VERSUS

ABDULRAZAK KHALIFA

OMAR MOHAMED SAID...........................RESPONDENTS

RULING

1. The deceased herein died intestate on 9th September, 1985 leaving seven children as survivors namely; Omar Mohamed Said(son), Abdulrazak Khalifa Salim(son), Zeinab Khalifa Salim(daughter),Rahma Khalifa Khatar(daughter),FatumaMohamed Sketty(daughter), Salima Mohamed Said(daughter), and Abdulkarim Mohamed Said(son). On 9th October,2000, the High court issued a grant of letters of administration to two of her sons namely; Adbulrazak Khalifa and Omar Said Mohamed. The grant was confirmed on 9th April, 2003 Albeit serious contestation on the mode of distribution.

2. Upon hearing both parties, the court directed that Plot No 1497 section XVII the only asset comprising the estate together with developments thereon be sold and proceeds thereof be shared out amongst the beneficiaries in accordance with the Islamic Sheria Law. The court made a further order directing that priority in the sale of the property be given to one Omar a co-administrator to the estate.

3. Aggrieved with the orders of the high court, the other beneficiaries other than the administrators lodged civil appeal No 102/2016 of the court of appeal Mombasa seeking to set aside or vary the orders of the high court. On 2nd November, 2017 the court of appeal delivered its judgment thus directing for the sale of the said property in the open market and proceeds be shared amongst the beneficiaries in accordance with the Islamic Sheria law.

4. By a summons dated 4th April, 2018, the other beneficiaries to the estate other than the administrators sought orders to evict Omar (2nd administrator) (respondent) and Zainab Kalif (beneficiary) from the subject property to facilitate valuation of the property. The application also sought release of the title deed to the property to the deputy registrar of the high court to facilitate the sale.

5. By a replying affidavit sworn on 23rd July,2019 Omar averred that as a family, they had agreed for him to buy the property and the same be distributed in accordance with the award of the chief Kadhi dated 29th June 2008. As to the release of the title, he argued that he had spent substantial amount in survey expenses hence needed a refund before he could release the same. He also claimed that it was impossible to get the highest bidder.

6. On 28th January, 2020, the applicants filed a notice to withdraw the application with no order as to costs. On the same day, the court marked the application as withdrawn. Mr Kimani for the applicants urged the court to mark the file as closed. Mr Obonyo for the respondent indicated that he had no objection and that the rest of the issues could be dealt with at the family level.

7. Subsequently, Mr.Kimani advocate appearing for the rest of the beneficiaries /applicants herein filed a notice of motion dated 14th September, 2020 seeking an order declaring that the order of the court closing the file on 28th January, 2020 be set aside to enable execution of the order of the court.

8. The application is anchored on the ground that the file could not be closed before completing execution process in obedience to the court of appeal order dated 2nd November, 2017. That the refusal by the high court to execute the order of the court of appeal order amounts to a travesty of justice as the beneficiaries are yet to enjoy their share or benefits out of the estate.

9. The second respondent one Omar filed a replying affidavit sworn on 15th December, 2020 together with a notice of objection contending that; the court having marked the file closed on 28th January,2020 is deemed to be functus officio hence cannot revisit the order; the application is intended at forum shopping; application is vexatious, hopeless and frivolous.

10. When both counsel appeared before the court, they agreed to file submissions to dispose the application. Subsequently, the applicants through the firm of Kimani filed their submissions on 28th January, 2021 reiterating the grounds in support of the application.

11. The applicants submitted that their efforts to file an application to execute the court of appeal order has been frustrated by the high court registry staff on account that the file had been closed. That by dint of section 4 of the appellate jurisdiction Act, this court is bound to execute the court of appeal decisions.

12. Mr Kimani argued that the court has inherent powers under Rule 49 of the Law of Succession Act to re -open the file in the interest of justice. Counsel submitted that it was erroneous to close the file before execution process could be completed and that there is no prejudice in re-opening the same as the court is not functus officio.

13. The 2nd respondent filed his submissions on 10th February, 2021 through the firm of Hayanga and Co.Advocates adopting the content in the affidavit in support. Mr Hayanga contended that the court had closed its file on 28th January, 2020. Counsel submitted that the application raises controversial matters of fact which were not supported by a supporting affidavit. Counsel further contended that it was the applicants who closed the file on their own motion.

14. It was further stated that there is no high court order pending execution. That the provisions relied on have no bearing with the application before the court and that the inherent jurisdiction of the court under Section 3A of the Civil Procedure Act can only apply where there are no express provisions of the law. To justify this fact, counsel relied on the holding in the case of Deposit Protection Fund Board v Kamau and another ( 1999) E.A Vol. 2 page 87 and Musamarini Ltd and another VS ADM Ltd and Others ( 2011)1 EA 333 where the court held that inherent jurisdiction does not provide sweeping powers against basic rules of engagement in a court of the law.

Analysis and determination

15. I have considered the application herein, responses thereto and rival submissions by both counsel. The issues that arise for determination are; whether the application is properly before the court and, whether this court has become functus officio.

16. The applicants are beneficiaries of the high court judgment which was upheld by the court of appeal but slightly modified on 2nd November, 2017. The court of appeal order directing sale of the subject property and distribution of the proceeds amongst the beneficiaries in accordance with the Islamic Sheria Law has not been implemented. That judgment is up today a mere paper with the estate remaining un-distributed for over 21 years now. The respondents are totally silent on the issue whether the court order has been obeyed.

17. It is true that on 28th January, 2020, an application dated 4th June 2018 attempting to execute the court of appeal order was withdrawn by the applicants then represented by Mr Kimani. For some reason known him, Mr Kimani urged the court to mark the file closed. Mr. Obonyo for the respondents did not object but remarked that the rest of the issues were to be dealt with at the family level. From Mr. Obonyo’s remarks, it implied that the matter still had outstanding issues which had not been fully settled hence recourse for settlement at the family level. Mr. Kimani has now come to court seeking those orders set aside on grounds that the court order has not been executed.

18. According to Mr. Hanyanga, the application is not properly before the court as the court has not been moved under proper provisions of the law and that the application is not supported by an affidavit. On the issue of the application not being supported by an affidavit, I wish to state that the issue at hand is setting aside of a court order which is on record hence does not require any proof by way of an affidavit. Secondly, the court of appeal order is also on record hence an undisputed fact which does not need any proof or substantiation through an affidavit.

19. The requirement for affidavits in support of an application is anchored under Order 51 rule 4 of the Civil Procedure Rules which provides that;

“Every notice of motion shall state in general terms the grounds of the application and where any notice is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served”

20. From the above provision, it is clear that not every application must be accompanied by a supporting affidavit. It also depends on the nature and circumstances of the case. See Benson Mugo Kinyua vs Peter Muriuki Kinyua (2014) e KLR where the court stated that;

“From the foregoing, it is clear that not all applications need to be supported by an affidavit.”

21. Regarding the question that the application is brought under wrong provisions of the law, the court is duty bound to uphold substantive justice without demanding want of form. The application has been brought under Sections 1A,1B and 3A of the Civil Procedure Act and Order 50 (1) of the Civil Procure Rules. It is true that the provisions quoted are not provided for under rule 63 of Probate and Administration rules.

22. However, failure to quote the relevant provision of the law amounts to want of form which is not substantive justice. It is not fatal to quote a wrong provision on which an application is anchored as the same is curable under Article 159 (2)(d) of the Constitution which provides that courts shall determine matters without regard to undue technicalities. For those reasons that ground fails.

23. However, under Section 47 of the Law of Succession, the High court has wide jurisdiction to entertain any application and determine any dispute under this Act and to pronounce orders therein as may be expedient. Rule 73 of the same Act does provide that;

“nothing in these rules shall limit or otherwise affect the inherent powers 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”

24. Taking into account Section 47 of the Law of Succession under rule 73, above quoted, this court is properly seized of the matter hence no prejudice will be suffered by the respondents by entertaining it.

25. The other critical issue which emerged is the allegation that this court has become functus officio upon closure of the file. As I said above, the prayer to close the file first came from Kimani’s mouth. Substantive proceedings in this file concluded when the high court delivered its judgment directing sale of the property for distribution. The same was upheld by the court of appeal save for a variation that the property be subjected to open market sale by auction.

26. Obviously, this court is seized of residual powers to ensure that its orders by extension the court of appeal orders are implemented by ensuring compliance. In the event of disobedience by the administrators in not facilitating the sale as directed, the court would be moved appropriately for necessary action. The court therefore does not cede authority in a succession matter without completion of the administration of the estate and compliance with Section 83 of the Act which requires administrators to give an account of the estate before closure.

27. In the instant case, both the high court and court of appeal judgment have not been implemented. What will be the fate of the beneficiaries/applicants if the court order is disobeyed or not implemented with impunity? The respondents as administrators have not stated whether the judgment has been implemented.

28. It is unfortunate that Mr. Kimani is loudly lamenting while unjustifiably venting against the court for mistakes he himself authored. Who told him to ask the court to close the file? Had execution process he is now demanding been concluded? Under whose influence was Kimani acting? In his application and submissions, he has deliberately avoided to tell the court why he asked the court to close the file and in whose interest? Why change of mind? Was he seized of instructions from his clients to have the file closed? Had he weighed the consequences? Courts are not punching bags for even deliberate mistakes caused by an advocate. Mr. Kimani should admit that by asking closure of the file he had no interest of his clients at heart and therefore should not shed any tears as he purports to blame the court viciously.

29. Be it as it may, this court is under obligation to weigh the consequences of having the file remain closed vis a vis setting aside the closure order of 28th January, 2020 and have the beneficiaries of the estate enjoy the fruits of their judgment. What prejudice will the respondents suffer by setting aside the closure order which I believe was entered by error or mistake.

30. In the instant case, the file is not being re-opened for further trial but for purposes of follow up to ensure that the court orders are implemented. The court does not become functus officio as it is not being asked to adjudicate on a matter already determined.

31. All I can see are mistakes of an advocate which should not be visited on his clients. The application to close the file was a blunder by counsel which blunder he has avoided to explain in his submissions. However, blunders shall always be there. See Chemwolo and another Vs Augustine Kubende (1986) KLR. what is most important is the attainment of substantive justice. I do not see any miscarriage of justice in re-opening the file to enable the court monitor implementation of its orders and those of the court of appeal which are basically the same and, finally compliance with Section 83 of the Law of Succession Act.

32. In view of this court’s discretionary powers under Section 47 of the Law of Succession and Rule 73 of the Probate and Administration rules, I am persuaded that the administration of the estate will only be complete after implementation of the court of appeal decision confirming the high court order on sale of the property. In fact, this court has even authority to exercise suo moto powers to correct an error on the face of the record or for any other sufficient cause for the sake of justice to be met. I do not understand why the order of the court of appeal which has never been challenged has been ignored and or disobeyed. This is not a matter that should find its way to the corridors of justice since 2nd November, 2017 when final orders were made. Under Section 4 of the appellate jurisdiction Act Cap 9, the high court has powers to implement court of appeal orders. In this case, the matter is properly before the high court. For the above reasons stated, the application herein is allowed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31ST DAY OF AUGUST, 2021

............................

J. N. ONYIEGO

JUDGE