[2022] KEHC 16165 (KLR)

In re Estate of Hoseah Karanja Karari (Deceased) (Succession Cause 701 of 2015) [2022] KEHC 16165 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16165 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 701 of 2015

TM Matheka, J

December 8, 2022

Between

Mary Wambui

Applicant

and

Felix Ng’ang’a Karanja

Executor

Ruling

1. The application before me is the Notice of Motion dated 5th July 2022 brought under Section 5(1) Judicature Act, Sections 94 and 95 of the Law of Succession 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Order 40 Rule (3) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.

2. It seeks orders;1. That this application be certified urgent and heard ex-parte in the first instance.2. That the respondent/executor be cited for contempt and punished for the same by imprisonment of 6 months.3. That the respondent/executor be ordered to render to court, within 30 days on his behalf and the estate an accurate account of the entire rental and any other income in respect of the premises of Hoska Plaza, Nakuru Town, as per the grant to applicants account number: 01245040918100, National Bank.4. That the respondent/executor be ordered to pay the applicant arrears of Kshs 1. 6 million income in respect of the premises on Hoska Plaza, Nakuru Town, as per the grant to applicants account number 01245040918100, National Bank.5. That an order be made to place Hoska Plaza, Nakuru Town under the management of a reputable estate management company and the said estate management company to collect and account for the rent and income of the property.6. That costs be provided for.

3. The grounds are on the face of the Notice of Motion and in the Affidavit of Support sworn by Mary Wambui.

4. The gist of the application is the failure by the respondent who is the executor of the will of Hoseah Karanja Karori, (deceased) to remit, as per the Certificate of Confirmation of Grant of probate with will made on September 3, 2019 to the applicant her share of the estate from the proceeds of Hoska Plaza, Nakuru Town.

5. The Notice was brought via the Certificate of Urgency of Gladys Achieng Ndenda Advocate, on the ground that;a)THAT the respondent is acting in defiance of Consent orders issued on September 4, 2019, by this Honourable Court by refusing to pay the Applicant the agreed sum of Kshs 400,000/= P.A and as per the grant issued on October 2, 2019 being proceeds of property Hoska Plaza, Nakuru Town.b)THAT the applicant continues to suffer irreparable loss and damage due to the Respondent’s continued disobedience of this Honourable Court’s order.c)THAT it is in the interest of justice that this application be considered on priority basis.

6. When the matter came for hearing on October 21, 2022 the respondent raised a Preliminary Objection on the basis of the provisions of Rule 59 of the P & A Rules. His point is that the application is brought by way of Notice of Motion instead of Summons, and for that reason it is incompetent and ought to be struck out.

7. Counsel also argued that the matter had been in court in June /July for the rectification of the spelling of the name of the objector/applicant through a miscellaneous application.

8. In response the applicants counsel Ms. Cherono submitted that the respondent is an officer of this court, and the application seeks that he be held in contempt of the orders of this court. That in any event the issue here ought to be the merits of the application, which the respondent clearly understands. That the issue of rectification of the grant was never brought to the attention of the applicant, and because the respondent had failed his role as the executor, the court needed to deal with him appropriately.

9. The respondent took the position, on rejoinder, that the issue of contempt brought against him needed to be brought in the right way because;“I may need to appeal. It should be laid before the court in a proper way, I should get a chance to respond.”He also submitted that he may need to send the matter back to mediation. He referred the court to E v E[1970] EA, 604 where the court held (Chanan Singh J)(iv)The use of an incorrect originating process cannot be waived by the appearance of the defendant on the filing of the defence.(v)The court itself may and should strike out process incorrectly originated.

10. I have carefully considered the rival submissions.

11. A preliminary objection can only raise issues of law. The principles that the Court is required to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. At page 700 Law JA stated:“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”At page 701 Sir Charles Newbold, P added:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion...”

12. The respondent’s Preliminary Objection is based on the provisions of Rule 59 of the P & A Ruleswhich states at Rule 59(1);“Save as provided in these Rules every application to the court on to a registry shall be brought in the form of a petition, caveat or summons as may be appropriate.”

13. It is on the strength of this provision that the respondent’s argument of the preliminary objection is anchored. He is saying that because the applicant used the wrong process to seek his compliance with the orders of this court, that application ought to be struck out. It is noteworthy that the precedent he relies on is pre the 2010 Constitutionwhich abhors the reliance on any technicality to stand before the access to justice for nay party. is a case

14. However, as an officer of the court he ought to be aware of the fact that rules of procedure are the handmaids of justice. In Republicex parteChudasama v The Chief Magistrate’s Court, Nairobi and AnotherNairobi HCCC No 473 of 2006 [2008] 2 EA 311, in which the Court cited with approval The Judicial Review Handbook (3rd Edn) by Michael Fordham at 361, Republic v Kensington and Chelsea Royal LBC [1989] All ER 1202 at 1215, Role of a Judge by J Cardozo 52 Harvard LR 361 at 363; Seaford Court Estates Ltd v Asher [1994] 2 All ER 155 at 164:“The Court is always faced with variety of facts and circumstances and to place it into a straight jacket of a procedure, especially in the field of very important, sensitive and special jurisdiction touching on liberties and rights of subjects shall be a blot on independence and many facetted jurisdiction and discretionary powers of the High Court… It is well settled that ‘rule of procedure cannot be allowed to become mistress of justice; it is the handmaid of justice. Rules of procedure are not themselves an end but the means to achieve the ends of justice. Rules of procedure are tools targeted to achieve justice and are not hurdles to obstruct the pathway of justice…A judge must think of himself as an artist who, although he must know the handbooks, should never trust them for his guidelines; in the end he must rely upon his almost instinctive senses of where the line lay between the word and the purpose which lay behind it. A Judge must not alter the material of which the Act is known but he can and should iron out the creases…”

15. Further Ringera J as he then was had this to say on the subject in Microsoft Corporation v Mitsumi Computer Garage Ltd & AnotherNairobi (Milimani) HCCC No 810 of 2001 [2001] KLR 470; [2001] 2 EA 460 that:“Rules of procedure are handmaidens and not mistresses of justice and should not be elevated to a fetish as theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not fetter or choke it and where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form or procedure, which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect, ought not be treated as nullifying the legal instruments thus affected and the Court should rise to its higher calling to do justice by saving the proceedings in issue.”

16. It is not in doubt that the applicant has brought the application under the wrong heading. Counsel for the applicant has also cited provisions of the Civil Procedure Act that are not applicable by virtue of rule 63 of the P&A Rules. However, counsel has also cited the requisite provisions of the Law of Succession Act for the application. The Certificate of urgency, the application and the affidavit in support clearly set out the reasons why the application has been filed: that is to compel the respondent to execute the orders of this court as per the certificate of confirmation of grant as the administrator of the deceased’s estate. Hence on the face of it all he is well aware of what the applicant is complaining about. As an officer of this court and the administrator/executor who exercises powers donated to him by the grant herein, it is expected that he would be the one to explain any challenges in carrying out his mandate even without any prompting by the applicant or the court.

17. In any event the same rules empower the court to act in the interests of justice. This power is aptly captured at Rule 73 which states;“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice to prevent abuse of the process of the court.”

18. There is also the duty imposed upon the courts by Article 159 (2) of the Constitutionto do justice by considering the merits of the case.

19. Evidently the trajectory adopted by the respondent with respect to the applicant’s complaint is not in the interests of justice or the estate. I say this having noted the certificate of confirmation of grant lays certain duties upon the respondent which include the disbursement of proceeds from the said property to the beneficiaries of the estate. He ought to have responded to the application and explained why he was not executing his legal mandate to the detriment of the applicant. That is what is at the heart of the Notice of Motion, the failure by the respondent to carry out his duty as an executor with respect to one of the properties or assets of the estate Hoska Plaza Building in Nakuru Town LR block 5/113.

20. Is the preliminary objection raised by the respondent a pure point of law that would dispose of this whole matter? Clearly no, as it is an issue of the procedure adopted by the applicant, which as indicated herein above cannot be the basis of the striking out of the application. The respondent has not demonstrated that the procedure adopted has in any way prejudiced him or caused him injustice. His fear that the manner in which the application is brought could prejudice any appeal he might have against the application is not founded.

21. It is my view that looking at the application and the nature of this matter and the fact that the respondent is the administrator of the estate, his action of failing to explain his position and instead, raising the preliminary objection, in the manner he has without responding to the application the respondent is the one acting in a manner prejudicial to the administration of the estate. I am not saying that he was not entitled to raise the Preliminary Objection but it would have served the interests of justice and would have been expedient for him to simply respond and explain his predicament if any.

22. This is because in my consideration of the application the only question is why he is not complying with the certificate of Confirmation of Grant with respect to this one property and this one beneficiary. To that end I find the preliminary objection unmerited and dismiss it accordingly.

23. Hence I make the following findings;1. With respect to the application; the same was filed on the July 13, 2022. It was served on the respondent on the September 23, 2022. Having dismissed the Preliminary Objection I find that the application is one which deserves a response by the respondent as the same is merited.2. On the prayer on that the respondent/executor be cited for contempt and punished for the same by imprisonment of 6 months: the respondent will be granted the opportunity to purge the contempt if found to have committed any.3. with respect to the prayer that the respondent/executor be ordered to render to court, within 30 days on his behalf and the estate an accurate account of the entire rental and any other income in respect of the premises of Hoska Plaza, Nakuru Town, as per the grant; the respondent is granted 30 days from the date within which to file the account with the court.4. With respect to the prayer that respondent/executor be ordered to pay the applicant arrears of Kshs 1. 6 million incomes in respect of the premises on Hoska Plaza, Nakuru Town, as per the grant to applicants account number 01245040918100, National Bank: this will abide the respondent’s compliance with the order to render account.5. with respect to the prayer that an order be made to place Hoska Plaza, Nakuru Town under the management of a reputable estate management company and the said estate management company to collect and account for the rent and income of the property: the respondent is to provide the court with evidence of the estate management arrangement he has for this property together with the account he will render as per (3) above.6. Each party to bear its own costs.

Dated, signed and delivered this 8thday of December 2022. Mumbua T MathekaJudgeC/A EdnaMr. Karanja the respondent present in personnfelix.karanja@gmail.comMs. Awuor holding brief Mrs. Ndedagandeda2006@gmail.com