[2022] KEHC 647 (KLR)

In re Estate of Esther Wambui w/o John alias Esther Wambui Nyamu alias Esther Wambui Maina (Deceased) (Succession Cause 2581 of 2011) [2022] KEHC 647 (KLR) (Family) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 647 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2581 of 2011

A Ali-Aroni, J

June 9, 2022

IN THE MATTER OF THE ESTATE OF ESTHER WAMBUI W/O JOHN ALIAS ESTHER WAMBUI NYAMU ALIAS ESTHER WAMBUI MAINA (DECEASED)

Between

Michael Alred Maina

Applicant

and

Jane Wairimu Okumu

1st Respondent

Alexander Kariuki Maina

2nd Respondent

Ruling

1. There are two applications before court. The 1st one is dated the 30th of December 2019 and the 2nd one the 14th of December 2020. Both filed by the applicant and arise from the ruling of this court of the 19th of December, 2019. The said applications were heard together.

2. In brief the ruling of the 19th of December 2019 was in itself informed by 3 applications. Two of the same by the current Applicant and one by the Respondents. An application dated 14th February, 2019 was filed by the Respondents Jane Wairimu Okumu (Jane) and Alex Kariuki Maina(Alex) who sought to replace their deceased brother David Munyui Maina (David) who happens to be Michael's father, and had been the administrator herein before his demise, as the new administrators herein.The 2nd application was by the Applicant Michael Alfred Maina (Michael) and one Raymond Njoroge (Njoroge) which sought for rectification of the grant of confirmation so as to state that the property subject matter revolved exclusively to David and the title issued be rectified by deleting names of other beneficiaries, and restraining the Respondents from collecting rent.The 3rd application was by also Michael and dated 21st June, 2019. He sought for opening of an escrow account in the joint names of counsel representing the parties herein pending further orders of the court.

3. By consent of the parties, it was agreed that an escrow account was to be opened. It is not disputed that despite the consent and several court order no monies have been placed in the escrow account.

Application dated 14thDecember 2020 4. Failure to deposit rent as ordered by this court resulted in the 1st application herein dated 14th December 2020 where Michael sought to have the Respondents cited for contempt for failure to obey court orders of 30th July, 2019, 18th September, 2019 and 19th December, 2019. The orders referred to above stated as follows;Order of 30th July, 2019“That there is need to preserve the Estate pending resolution of outstanding matter. For now, an escrow account be opened in the joint names of counsel on record where all rent beginning 1st of August, 2019 will be deposited. Monies to be expended therefrom will be by leave of court.”Order of 18th September, 2019“1. That an account be opened with Kenya Commercial Bank in compliance with Court Order of 30th July, 2019 within 7 days.2. That mention on 1st October, 2019. 3.That both counsel to confirm compliance.”Order of 18th December, 2019“1. …….2. All rent collected from the 2 blocks of flats, the garage and/or any other unit or portion rented out will be paid into the escrow account opened in the name of Counsel on record and only outgoings to be approved by all the administrators will be paid out pending further orders of the court.3. ……..4. …….”

6. In his submissions on the 1st application, counsel for the Applicant Submitted that all the three orders were extracted and served upon the contemnors personally, the tenants in the block of flats and the advocate on record for the Respondents and despite acknowledging service, the contemnors willfully and knowingly ignored and or failed to comply which defiance is disastrous and detrimental to the Applicant and has interfered with administration of justice.

7. Further it was submitted that the action of the contemnors is a flagrant disregard of the court as an institution, in that, even though the account was opened no rent has been deposited. Court was referred to the holding in Burchellvs Burchell, Case No. 304 of 2005 S.A , as approved in A.B & another vs R.B Civil Application No. 4 of (2016) eKLR.

8. Further even with the knowledge that an escrow account was opened the contemnors went ahead to issue tenants with letters to continue paying rent to Villa Green Limited (agent). Reference was made to the case of James Maina Mangua & 2 Others Versus Registered Trustees of the Anglican Church of Kenya (2018) eKLR.

9. In a replying affidavit sworn by Jane, to the application dated 14th December, 2020, she stated that neither her nor persons cited have willfully disobeyed or disregarded the court order, nor been discourteous towards the court in a behavior tantamount to opposing or defying the authority of the court.

10. She further stated that the actions of the Applicant and his counsel on record made it difficult for them to comply. She deposed that;(a)As at the time the court ordered the escrow account to be opened the Respondents were not administrators though as the eldest daughter of the deceased she facilitated collection of rent, management of the estate and upkeep of other beneficiaries.(b)As for the order of 18th September, 2019 at the time the order was issued they were in the process of replacing lawyers which delayed execution and as soon as their current lawyer was in place, she sought for time to comply. Thereafter parties engaged in negotiations with a hope of arriving at an amicable solution and on said date the court order was varied by consent of the parties to that extent the opening of the escrow account was halted.(c)As for the order of 19th December, 2019 by the time the said order issued neither the Applicant’s counsel nor the Respondents' counsel had complied fully with the necessary requirements of opening an account, the process was ongoing until June 2020. That various reasons on both sides delayed opening of the account.

12. The account was eventually opened sometime in June 2020 and it is therefore not true to say that the person’s cited stalled opening the account and had disobeyed court orders.

13. Further the Applicant has not assured other beneficiaries that they will continue to benefit from the rental income for subsistence, the rental income remains the only source of income for all the beneficiaries and attempts to involve the Applicant in family meetings have not been fruitful and further on his part the Applicant has leased out part of the estate for Kshs.1 million.

15. The Applicant resides in the USA and has to consent to withdrawal of the funds, the other beneficiaries are fearful that he may deny them their only means of survival.

16. The submissions filed on behalf of the Respondents reiterate the contents of the affidavit of Jane in addition counsel submitted that the orders of 30th July, 2019 and 18th September, 2019 were varied and compromised by the conduct of the parties and by the filing of the application for review of the court orders by the Applicant in the second Application of 30th December, 2019.

18. Counsel further urged that the Applicant ought on his part to comply with his obligation to surrender the title document to enable subdivision of the property.

19. It was urged further that the Applicant has failed to prove satisfactorily that the Respondents are in contempt of court orders as the allegations are not backed by any evidence. And he too contributed to or occasioned the delay in fulfilling the court order.The court orders were clear and unambiguous and known to the parties and binding on both sides. The Respondents have partially complied and the failure to comply fully was due to the effect of Covid 19.

21. The application is frivolous and vexatious, fraught with malice and must fail. The Court was referred to Econet Wireless Kenya Ltdvs Minister for Information and Communication Kenya Misc Appl. No. 1640 of 2003, Abdi Satar Haji & Another Versus Omar Ahmed & Another(2018) eKLR, & Re Estate of Gitere Kahura (Deceased) (2019)eKLR,& Re Bramblevale (1970) 1Ch 128.

22. Having considered the application, the affidavit in reply, submissions by the parties and authorities cited there are two issues for consideration;(a)Whether the Respondents have failed tocomply with the 3 related orders?(b)If the above is in the affirmative what action does the court take?

24. The three court orders in effect required; One, opening of an escrow account in the joint names of counsel on record for the parties and for the rent to be deposited therein beginning 1st August, 2019. Secondly, the account be opened at Kenya Commercial Bank within 7 days of 18th September, 2019. Thirdly, the rent to be place in the account was to include rent collected from the 12 block of flats, the garage and or /any other space rented out, and only outgoings approved by all administrators would paid out.

25. In as much as Covid 19 slowed down a lot of processes, the order was first issued before the pandemic. The court record shows counsel for the Applicant making effort to have the account opened and reluctance on the part of the Respondents' counsel.

26. Jane admits that she has been collecting rent and managing the Estate. The court orders were directed to the parties & counsel on record and therefore affected not administrators as there were none then and the court was alive to that fact. For Jane to say she was not an administrator and therefore not accountable before 19th December, 2019 is certainly contemptuous. In her own words she collected rent and managed the property.

27. As it were there has never been an application by any dependent of the deceased seeking for upkeep. The law on dependency is clear. Therefore, for now the issue does not arise and cannot be used as an excuse for not placing monies in the escrow account. For Jane Okumu and any of the beneficiaries deeping there hands in the funds belonging to the estate is to intermeddle with the Estate.

29. Further, the record of the court does not reflect parties varying any of the court orders. A request to court to give parties time to attempt an out of court settlement does not amount to a variation of court orders.

30. Considering the response no viable reason has been given by the 1st and 2nd Respondent as to why it took too long to open the account in the first place and despite the delay why they have continued to defy the court order as there is no proof before the court that funds have been deposited. Court orders are certainly not made in vain.

31. The Court of Appeal in A.B & AnothervR.B, Civil Application No. 4 of (2016) eKLR referred to the decision of the Constitutional Court of South Africa in Burchell Vs Burchell, Case No. 364 of 2005 where it was held as follows;“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of Law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the Judicial authority of the State in the court and requires other organ of the state to assist and protect the court. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively have the potential to undermine confidence in recourse to law as instrument to resolve any disputes and may thus impact negatively on the rule of Law.”

32. Further as stated in the case of James Maina Maigua and 2 othersvs Registered Trustees of the Anglican Church of Kenya (2018) eKLR,“….court orders are not mere suggestions or decorative pieces of fancy court seals. They are orders of the court and must be obeyed.” (emphasize added)

33. In this instance the Respondents had no choice to open or not to open the escrow account or to decide whether or not to place rent in the said account or to decide that opening the same and placing funds did not suit them.

34. This court finds that there is evidence to the required stand to show that the the Respondents failed to obey court orders knowingly and willfully.

35. This court has a duty to uphold the dignity of the institution and to safeguard the rule of law. In order to do so the court must punish those who repeatedly, willingly and knowingly disobey its orders. In Teachers Service Commissionvs Kenya National Union of Teachers and 2 others (2013) eKLR, the court succinctly explained why courts punish for contempt in the following words;“The reason why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the Presiding Judge. Neither is it about placating the Applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those it is directed. A court order is not a mere suggestion or an opinion or a point of view, it is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is the interest of every person that this remains the case.”

36. Having found the Respondents in contempt of court orders of 30th July, 2019, 18th September, 2019 and 19th December, 2019. The court fines each one of them the sum of Kenya shillings 120,000/= or 3 months in jail. Costs to the Applicant.

Application of 30th December 2019 37. This application filed by the Applicant has 13 prayers. Prayers 1,2, 6 and 7 are spent. The remaining prayers are;-1. Spent.2. Spent.3. That the Respondents either by themselves, their servants and/or agents be restrained forthwith from subdividing the suit parcel of land Title Kiambaa/Ruaka/9 Komu River side pending hearing and final determination of the application herein.4. That a restraining and prohibitive order do issue forthwith barring the Respondents herein either by themselves, their servants and/or agents from entering into remaining, interfering with, tampering with, trespassing onto, and/or undertaking any prejudicial activity of any nature whatsoever and howsoever on all that vacant side of the property known as Kiambaa/Ruaka/9 Komu River side.5. That a stay of execution do issue forthwith barring the Respondents, their servants and/or agents from extracting and/or implementing any orders from the ruling on the 19th of December, 2019 pending hearing and final determination of the application herein.6. Spent.7. Spent.8. That the Honourable Court do forthwith physically visit the site where the suit property Title Kiambaa/Ruaka/9 is situate in the presence of the respective advocates before making any other or further orders.9. That the Applicants herein be granted leave to summon viva voche evidence and to cross-examine Jane Wairimu Okumu on her affidavits before this Honourable Court reaches a determination on the matter.10. That an order of variation and setting aside do issue forthwith confirming that Section 38 of the Law of Succession Act is not applicable in this matter.11. That the Title Kiambaa/Ruaka/9 held by the Estate of the late David Munyui Maina cannot be legally and/or validly impeached, revoked and/or cancelled in the current proceedings as that are ongoing succession proceedings in Kiambu Succession Case No. 318 of 2018 in the matter of the Estate of the late David Munyui Maina.12. That in the alterative the ruling made by this Honourable Court on the 18th of December, 2019 be reviewed, varied and/or set aside to provide specifically as follows;(a)The Applicants Gail Maina, Michael Alfred Maina and John Maurice Maina to have exclusive ownership of the Kiambaa/Ruaka on the Komu River side.(b)Jane Wairimu Okumu, Alexander Kariuki Maina, John Maina Elaine Maina, Nicholas Maina and Emma Wmbui do have joint ownership of the parcel of land Kiambaa/Ruaka/9 on the Ruaka side.13. Costs of the application be in the cause.

38. The application was predicated on grounds that the Respondents had commissioned a Surveyor to subdivide the entire land. Further the matter had been confirmed on 19th November, 2012 and was fully implemented giving rise to a title being issued for the land subject matter Kiambaa/Ruaka/9 in the name of David holding for himself and in trust for persons specifically named therein. That out of 7 persons named, only 3 are children of the deceased; the title was transferred to David before he died in 2017 and the portion described as Komu River side was received by him as a gift inter vivos , occupied and utilized by him,

39. This court made draconian orders essentially revoking the title without following due process, there is gross error on the face of the record; the court has made pre-emptive orders regarding a title in the name of the deceased whilst the Estate was subject of Kiambu Chief Magistrate Court at a Case No. 31 of 2018.

40. Further it was submitted that there was no property for distribution in the name of Esther Muthoni Maina and there is no order sought or granted in the appropriate form to revoke the title to the property subject matter. Further there was no application for revocation before court. The court failed to have regard to the conflicting and suspicious documents describing Jane &, Alexander as beneficiaries.The Judge wrongfully omitted and/or failed to address the implication of forged document.

41. It was further urged that there is need for the Honourable Court to isit the property subject matter to appreciate the terrain of the property as the effect of the ruling is to wrongly deprive a family of their constitutional entrenched right and claim to prime and valuable use for the property Kiambaa/Ruaka/9.

42. In his affidavit Michael stated that both his grand parents bequeathed the land subject matter to their late father David who took physical possession of the same and put up a block of 12 apartments. Further, their father occupied and sublet the Komo River side of the property during his life time.

43. Further he stated that Elaine Njoki and Nicholas Maina children of late Njoki Maina have a wealthy father and are illegally pursuing his father’s Estate. On her part Emma Wambui is employed and has a businessman for a father. Furthermore, Section 38 of the Law of succession Act does not cover nephews and nieces.

44. Further he stated that the court ignored the forensic report, failed to make a finding on two conflicting letters of the chief and therefor the ruling must be set aside.

45. John Maurice Maina a son of David also swore an affidavit in support stating that their late father repeatedly informed them of the residential flats he was constructing. He reiterated the contents of Michael’s affidavit.

46. The application was opposed by the Respondents in an affidavit of Jane dated 17th February, 2020 & a further affidavit dated 29th March 2021. She deposed that the application lacks merit. Its an omni bus application seeking various orders, ranging from confirming orders, varying the same, review, setting aside, appealing, recusal of Judge, summoning of witnesses and viva voce .

42. The application is intended to re-open the case; there is no new material or evidence placed before court to warrant a review as sought; and the application is in the nature of an appeal. Further, no sufficient reason has been given for the proposed visit to the suit property.

44. No sufficient reasons have been adduced to set aside this court’s finding that Section 38 of the law of succession applies to this matter.

45. That despite the fact that the grant was confirmed on the 19th of November 2012 distribution was never completed. By the administrator, David died and the Respondents in their application seeking to replace him wanted to ensure distribution is completed.

46. The Applicant being is the eldest son of David and indicated throughout that he spoke on his behalf and that of his brother and mother.

47. In The Chief Magistrate Succession Case No. 318 of 2018 in Kiambu Michael was appointed the administrator of that estate of David. Further the court found that the property subject matter was not David’s Property and could not be administered within his estate.

48. The Applicant failed to establish the alleged mistake or error apparent on the face of the record in the court’s ruling.

Submissions 46. The case for the Applicant is that the deceased herein died on the 26th of October, 2003, and had her wishes implemented by David. Further the grant herein was confirmed on the 19th of November, 2019 and fully implemented and as such the suit property was transferred to David for himself and to hold in trust several persons.

47. It was further submitted that the said property was transferred to David by his mother as a gift inter vivos, David took possesion, constructed a block of 12 flats on the Ruaka side and rented several parts of the land to tenants (jua kali artisans and garage owners) on the Kanda Komu Riverside.Further, it David followed his mother’s wish to leave the Ruaka side for those who needed it, including the persons he was holding in trust for.

48. That after the death of David, his immediate family filed Succession Cause No. 378 of 2018 in the matter of the Estate of David Munyui Maina (deceased) for purposes of administering his Estate.The succession proceedings in Kiambu were ongoing when the Respondents’ herein filed an application to replace David as an administrator whereas the 2nd application was sought to rectify the grant as the said property does exclusively to David’s Estate and there was need for an escrow account to be opened.

49. The Court was also referred to Section 80 of the Civil Procedures Actas read with Order 45 of the Civil Procedure Rules and Rule 63 of the Probate and Administration Rules. Reference was made also in this regard to John Mundia & 9 othersvs Cecilia Muthoni Njoroge & another(2016) eKLR.

50. It submitted by counsel that review, variation and setting aside is sought by the Applicant for the following reasons;(a)There is an error apparent on the face of the record namely; the court failed to consider the handwritten note of the late Esther Wambui, which was translated from English to Kikuyu, as the said property was therein distributed.The said note gifted the the land inter vivos. In this regard reference was made to the Estate of the late Gideon Manthi Nzioka (deceased) (2015)eKLR and Re Estate of Godana Songoro Guyo (deceased) (2020) eKLR.(b)Parties were not allowed oral hearing yet there are contested facts and there was need to interrogate evidence through cross examination. Reference was made to Gerald Macharia NjoguvSamuel Macharia Murimi (2016) eKLR.(c)Further it was stated that the impugned Ruling was made in the absence of representation of the 1st and 3rd Applicants who are wife and son of the late David Munyui Maina and further orders I and III made in the ruling were not sort for. The Applicants were to have exclusive ownership of the portion on the Kanda Komu River side. The Respondents ought to have join ownership of the Ruaka side.(d)Stay execution of the court ruling of 19th December, 2019 as the applicant and the estate of David stand to suffer substantial loss, the Application was filed expeditiously, and security is not necessary.(e)As for the site visit , there is need for the court to see the terrain of the property. Komu side has steep incline while Ruaka side has a gentle flat character. In this regard reference was made to Beatrice Ngonyo Ndungu & Another versus Samuel K. Kanyoro & 2 others (2017)eKLR

Respondents Submission 51. The prayer for joinder is misplaced as the court already heard and determined the matter. Further the 2nd Applicant all along informed the court that he had the authority of the 1st Applicant who is his mother and the 3rd who happens to be his brother. This application is mischievous and an attempt to re-litigate. Reference was made to the case of Kenya Airport Authorityvs Mitu Bell Welfare Society & others (2016) eKLR , Blacks Law Dictionary 3rdEdition (2014) & Merry Beach Limitedvs A.G & 18 others (2018) eKLR.The court cannot enjoin a party who was represented in the proceedings by a proxy or otherwise.

52. The application does not meet the threshold necessary for an application for review as contemplated by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.

53. The Applicant in prayer No. 8 and 9 seeks to have the matter heard a fresh and re-litigated a new. They seek to call fresh and new evidence, a visit to the site. Raymond deponed to similar issue in an affidavit of 17th March, 2019 in support of the Applicant’s application dated 12th March, 2019 and it is trite law that a court cannot on an appeal of its own orders as the Applicant does not seek review of the orders of the court but appears to challenge the same.

54. The Applicant is required to prove that the intended witnesses will bring new evidence that was not within their knowledge or only were unable to secure them despite due diligence. This the Applicant has failed to do. Reference was made to Tom Martins Kibisuvs Republic, Supreme Court Petition No. 3 of (2014) eKLRand James Mwaniki KamauvRepublic (2018) eKLR.

55. As to the allegation that there was an error apparent on the face of the record, it is submitted that the arguments by the Applicant do not fit the definition of what courts would consider to be error apparent on the face of the record. Reference was made to Mary Wambui Njugunavs William Ole Nabala & 9 others(2018) eKLR. While citing the case of Nyamogo & Nyamogovs kogo (2001) E.A 174.

56. Further the Applicants have failed to lay bare the error apparent on the face of the record as their submissions are on an erroneous decision and which is not the position of the Respondents.

57. The document the Applicants are referring to as being wish and/or will of the late Esther Wambui Nyamu Maina is the basis for the grant and the confirmed grant issued on 19th November, 2012.

58. The Applicant seeks to remedy what they perceive as errors of law and fact by this court and this squarely falls in an appeal. Reference was further made to the case of Pancras T. Swai v Kenya BreweriesLtdCivil AppealNo. 275 of 2010 (2014) eKLR.

59. Based on all the above the Omnibus application is defective. Reference was made to Muriithi Wanjao (T/AWanjao & Wanjao Advocates) versus Samuel Mudati Gatabaki & another (2015)eKLRand Ryanda Mhandbheru RajputvBarclays Bank & othersCivil Case No. 38 of 2009.

60. As for the pending file in Kiambu court, the court in Kiambu already made a finding that the property subject matter does not form part of the Estate of David Munyui.Therefore, the application lacks merit and ought to be dismissed.

Analysis and Determination 61. Having considered the application, supporting and replying affidavits, submission and authorities cited, the court is of the view that the following issues are for determination: -a)Whether the wife and 2nd son to David are party to the suit and/or ought to be enjoined to the suit.b)Whether there is an error apparent on the face of the record in the court’s decision of 19th December, 2019. c)Whether, there are grounds for court to review, vary and/or set aside its ruling of the 19th December, 2019d)Whether Title number Kiambaa/Ruaka/9 was impeached by the court’s ruling of 19th December 2019? and whether this court could adjudicate on the same.e)Whether new evidence and cross examination of witnesses ought to be allowed? &f)Whether the court should visit the land subject matter?

62. The wife and the 2nd son of David have not formally applied to be enjoined as parties to the suit. Whether they may/or may not be enjoined is not an issue for now. The Applicant all along appeared in this matter as a representative of the Estate of David. The Estate of David’s beneficiaries are the the wife and their two sons. The wife and the 2nd son have not claimed that they were unaware of the matter before court neither that the Applicant misrepresented them or is not the administrator of the Estate of David. Or is it their case now that the Applicant did not represent them well? The argument is that a ruling was rendered in their absence.

63. In his earlier submissions Counsel for the Applicant one Gatheru Gathemia informed the court that Michael is in court on their behalf.What is at stake here is the share of David from the Estate of his mother and his Estate was well represented in the proceeding leading to the impugned ruling. As state, there is no application for joinder and therefore the names of the 2nd son and wife of David appearing as parties to the suit is not only erroneous but mischievous. Further no reason was adduced for them to be enjoined in an already concluded matter of course subject to whether the court will set aside its ruling and allow proceedings to start afresh.

64. Order 10 rule (2) of the Civil Procedure Rules empowers the court, at any stage of the proceedings to enjoin by an application either party or suo moto, a person who ought to have been joined or whose presence before the court is necessary to enable the court effectively and competently adjudicate upon and serve all issues.

65. In this case the 2nd son & wife of David were not necessary parties without whom the court could not adjudicate the matter effectively and conclusively. The Applicant well represented the Estate.

66. As regards the order for review, varying or setting aside, Order 45 of the Civil Procedure rules is applicable in Succession matters which both parties admit. The order stipulates as follows;(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 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 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.

67. The reasons for the review and setting aside sought for by the Applicant include; Error apparent on the record.

Judge failing to hear viva voche evidence and ignoring crucial evidence thus arriving at an erroneous decision.

Need for visit to the suit premises.

Need for viva voche evidence

Assertion that title Kiambaa/Ruaka/9 cannot be impeached as it revolves to the Estate of David

68. The alleged error apparent on the face of the record in the Applicant’s submission is failure by the court to consider the handwritten note of the late Esther Wambui as having gifted the property subject matter inter vivos to the late David; failure by the court to appreciate evidence placed before it on forgery and fraud on the part of the Respondent thus arriving at an erroneous decision. Alongside the fact that no viva voche evidence was allowed.

69. In his affidavit opposing the Respondent’s application for review of Grant dated 14th April, 2019 Michael stated;“12. That there is a letter written by my grandmother,Esther Wambui Maina where her last wishes regarding the property known as Kiambaa/Ruaka/9 were clearly spelt out…..”

70. Michael’s counsel Mr. Gatheru on the 16th of October, 2019 while addressing the court urged the following as issues for determination;“1. 1st issue is appointment of administrators2. Wish of the deceased3. Interpretation of the wish and subsequently what David Munyui agreed upon with his siblings and the new proposal by Michael.”(emphasize added)

71. This court's view is that the issue concerning the “wish” of the deceased based on the affidavit of the parties and their counsel’su submission was duly considered by the court and the court arrived made a finding in its ruling of 19th December, 2019 as follows;“19. It is not clear whether David was aware of his mother’s wish giving him one side of the Ruaka property or not. If he did he must have overlooked the same as when he applied for confirmation of the grant, he sought for the Estate to be shared equally.”20. The document referred as the deceased’s wish was neither executed nor attested by two witnesses and therefore cannot qualify as a will. Certainly, therefore the law of Succession Act (Act) Chapter 160 of the Laws of Kenya dealing with intestate states comes into operation...”

72. It is dishonest on the part of the Applicant to claim that the court erred by failing to consider that the property was gifted inter vivos when that was not the Applicant’s case neither was it canvassed in the first place, the Applicant’s case then was that a wish/will was left behind by the deceased herein on how the property was to be divided. The Applicant is making an attempt dishonestly to have a second bite at the cherry by changing and/or altering his narrative.

73. In the replying affidavit of Jane she states that David was present at the point when the Grant was confirmed for distribution in equal shares and had no problem with that despite the wish of their mother. The record of the court fortifies this argument.

74. As regards Expert evidence it is not binding on a court. It remains an opinion as such to be accepted or declined. Samson Tela Akutivs Republic (2000) eKLR the role of an expert was said not to be binding. The court stated;“The evidence of an expert is a mere opinion which is not binding on the trial court. The court has to make its own independent evaluation and finding, the opinion of the Expert notwithstanding.”In Stephen Kanini Wang’onduvs Ark Limited (2010) eKLR the court held;“…the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence….Firstly, expert evidence does not “trump all other evidence”.7 It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence……”

75. In relation to the allegation of fraud, the court did not find any fraud as alleged or at all on the court record. This is captured in the ruling.

76. In Mary Wambui Njugunavs Ole Nabala & 9 others Supra, the Court of Appeal had this to say on what error of face of the record is;“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal.”

77. The Applicant is of the view that the court failed to consider the wish as a gift inter Vivos and failed to consider Expert Evidence of fraud yet in both instances the court made a finding which in the eyes of the Applicant were erroneous. This cannot be error apparent on the face of the record since even the opposite side does not agree with the Applicant’s assertion. Error if any to be attributed would be in the decision of the court and this type of error cannot qualify as a being an error apparent on the face of the record by rather an erroneous decision if at all.

78. An attempt to introduce new evidence by seeking to visit the site or calling fresh evidence or cross examining of witnesses does not fall under the armpit of new and important evidence that was not within the knowledge of the Applicant despite due diligence. In any event, it was not demonstrated the intended evidence is new and was not known by the applicant upon exercise of due diligence.

79. Counsel for the applicant chose to proceed by way of submissions. He did not seek to have viva voche evidence adduced nor did he seek to cross examine witnesses. He had an opportunity to seek for both but he did not. He has himself to blame and cannot push the blame to the court. Parties were then comfortable to proceed by way of submissions; it suited them. An application could also have been made during the pendency of the hearing but this was not done either.

80. The Applicant had sought to rectify the grant so that the entire property devolved to his father’s Estate. The Respondents on their part wanted the property distributed in accordance with the confirmed grant which stated that Kiambaa/Ruaka/9 would be registered in the name of David Munyui Maina in his name for his own behalf and in trust for Jane Wairimu Okumu, Alexander Kariuki Maina, John Maina, Elaine Wambui, Nicholas Maina and Emma Wambui.In deed the Title Deed issued on 26th October, 2015 reflects the above.

81. Therefore this court did not impeach any title. The title was clear that the property had several owners who enjoyed equal shares. The Applicant is misguided to hold the view that since his father did not distribute the property it was solely his. The Respondents in this court’s view were right to seek fresh administrators who would complete the administration by distributing the estate in line with the confirmed Grant.In Gatheru’s own word on record the court had to ascertain the shares of the parties.

82. The court having ascertained that the document produced in court was a mere paper that did not qualify as a will applied the Law of Intestate Estate and distributed the property equally amongst the beneficiaries in accordance with the confirmed Grant taking into account that grandchildren of the deceased were entitled to their parent’s share similar to the claim that the current Applicant has mounted on behalf of his father’s estate.

83. The court agrees with the sentiments of the Respondents ‘counsel that this is an attempt to re-open the case in order to fix the gaps in the Applicant’s case and is not one of the instances that fall within Order 45 Rule 1b. There has to be an end to litigation. Parties cannot be allowed to return to litigate afresh because a fresh idea has come up or realization that the case ought to have been litigated differently. The court has to tread cautiously when parties seek for review and particularly based on new evidence.In D.J Lowe & CompanyLtdvs Banque Indosuez Civil ApplicationNairobi No. 217 of 1998 the Court of Appeal stated;“Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.”

84. Consequently, prayers 2,4,8,9,10,11,12 fail, prayers 3 and 5 were taken over by events whereas prayers 1,6 and 7 were spent.

85. Costs to the Respondents.

DELIVERED AND SIGNED AT GARISSA THIS 9TH JUNE, 2022. ALI-ARONIJUDGE