[2017] KEHC 543 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

SUCCESSION CAUSE NO. 3 OF 2017

IN THE MATTER OF THE ESTATE OF J N K (DECEASED)

M N G........................................................................PETITIONER

AND

J WN.......OBJECTOR/BENEFICIARY/INTERESTED PARTY

CONSOLIDATED WITH

SUCCESSION CAUSE NO. 4 OF 2017

IN THE MATTER OF THE ESTATE OF J N K (DECEASED)

GEORGE NDUNGU KIMANI.................................EXECUTOR

AND

M N G...........................................................................OBJECTOR

J W N.............................BENEFICIARY/INTERESTED PARTY

R U L I N G

1. The deceased herein J N K died on 6th February, 2017 while the subject of a guardianship order issued by this court under Mental Health Act. The order was made on 5th May 2016 in High Court Miscellaneous Civil Application Number 2 of 2016 J.N.K. (Subject) and J.W.N.and P.G.K. (Petitioners)-Versus- M.N.G. (Respondent). The said order, recorded by consent of the parties appointed M N G (wife), J W N (daughter) and J M N (son) as legal guardians to the then incapacitated deceased person.

2. By a further consent recorded on 11th May, 2016 Peter Kingori t/a Snowhite Commercial Agency was appointed to manage the estate of the deceased. Soon, it became evident that some funds were necessary to enable the deceased subject receive proper medical care and for his up keep. The court, having received affidavits and arguments made by the respective parties, delivered its ruling on 29th July 2016.

3. The paragraphs below capture the essence of the ruling:-

“16. With regard to the request for maintenance, of the subject, there is no dispute that this is necessary. There is no contention regarding the sums sought as monthly maintenance for the subject. This court is empowered under Section 28, 29 and 30 of the (Mental Health) Act to make appropriate orders for the maintenance of a subject.

17. I do order therefore that a sum of no more than Shs 300,000/= be withdrawn from the account number 07278……………(withheld) at the Barclays Bank Naivasha, on a monthly basis for the maintenance of the subject. Parties are at liberty to apply as necessary by way of formal applications rather than approaching the court by way of mention as happened in this instance. Parties to bear own costs.”

4. No more was heard of the matter, and it seemed that the arrangements suited the parties who earlier appeared to be at loggerheads. However, following death of the Subject of Miscellaneous Civil Application Number 2 of 2016, two causes were filed in respect of his estate. The first, Probate and Administration Case Number 3 of 2017 was filed on 29th March 2017 by M N G, the deceased’s widow. According to her, the deceased died intestate.

5. The second Petition was Probate and Administration Case Number 4 of 2017 filed on 30th March 2017, by George Ndungu Kimani, the appointed Executor of the deceased’s alleged will, dated 6th March 2008, which was annexed. In view of this development this court summoned all the parties to appear before it on 20th April 2017. On that date the court ordered that the two files be consolidated under lead file Probate and Administration Case Number 4 of 2017(relevant order inProbate and Administration Case Number 3 of 2017).

6. As expected, the vexed question of the management of the estate arose and took centre stage in the parties’ rival addresses before court. Thus at the end of the proceedings, the court directed that each of the parties propose names of estate agents for the consideration of the court. Also arising during the proceedings was question whether the widow should retain exclusive authority to withdraw the sums allowed by the court inMiscellaneous Civil Application Number 2 of 2016 for her own upkeep.

7. The parties could not agree. The court directed that affidavits be filed in this regard and that, in the meantime, given the special circumstances obtaining, the two Petitions be processed for publication as required under the Law of Succession Act. The parties complied.

8. This court’s subsequent ruling delivered on 19th May, 2017 dealt with the twin issues of the management of the estate and maintenance of the widow. At paragraph 10 of the said ruling of the court stated:

“In the circumstances, I will make the following orders:

a) Peter Kingori t/a Snowhite Commercial Agencies will continue to manage the estate of the deceased, pending the appointment of an estate agent/firm which meets the criteria I have set out earlier in this ruling AND one that can demonstrate long experience in managing estates on behalf both corporate and private clientele.

b) Within 30 days of today’s date Peter Kingori t/a Snowhite Commercial Agencies will file into court audited accounts in respect of the estate for the period starting 11/5/2016 to the filing date.

c) The parties will present two new proposals as to the estate agents they would prefer to manage the deceased’s estate, and who meet the criteria set out herein, within the period stated in (b) above, to enable the court make a fresh appointment.

d) Effective from end of May, 2017, the widow of the deceased M N G is hereby authorized to continue drawing for the deceased’s Barclays Bank account which was the subject of my order of 29th June, 2016 in Miscellaneous Civil Case Number 2 of 2016, the sum of Shs 200,000/= (Two Hundred Thousand) per month for her maintenance, pending further orders of this court.

e) With regard to order (b) and (c) above, this matter is stood over to 20th June 2017.

9. The above ruling prompted the Chamber Summons filed under certificate of urgency on 12th June, 2017 by the appointed Executor seeking order interalia:-

“3. THAT the honourable court be pleased to review its orders of 19/5/2017 and/or in the alternative recuse itself from hearing this matter and order for its transfer to any other court of competent jurisdiction.

4. THAT the honourable court orders that there be an interim provision of Kshs 800,000/= to the executor for financing litigation and other administrative duties pending the final disposal of this cause.”

10. The application is expressed to be broughtinteralia under Section 47 of the Law of Succession Act, Rules 63 (1) and (2) of the Probate and Administration Rules, Section 80 of the Civil Procedure Act and Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules. It is supported by the affidavit of George Ndungu Kimani Advocate, the named Executor.

11. The affidavit reiterated the grounds on the face of the application, the key ones being that:

“a) …………….;

b) The order issued by the Honourable Court is erroneous in that while the widow had requested for a monthly maintenance of Kshs 50,000/= under item 3 (xi) of her affidavit, the court awarded her Kshs 200,000/=.

c) The Honourable Court also fell into error in that it failed to take Judicial Notice that Shamba La Wanyama was an ongoing profitable business which could meet its recurrent expenditure.

d) The orders are oppressive and/or prejudicial at this juncture of the litigation.

e) There is fear the court’s ruling may have been inadvertently clouded by its prior involvement in certain aspects of the estate.

f) The Executor wishes to have the orders stayed and/or reviewed and/or in the alternative the court recuses itself from this matter, or have it transferred to another court of competent jurisdiction.

g) There needs to be a provision from the estate for the funding of litigation involving the executor.”

The beneficiary J W Nsupported the Chamber Summons vide her affidavit filed on 22nd June 2017, parts of which were withdrawn during the hearing of the Summons.

12. For her part the widow, M N Gopposed the Chamber Summons by way of a Replying affidavit. Citing previous proceedings in the causes she contended that the application is an afterthought as no new issues have arisen. Besides, she asserts her right to maintenance as the deceased’s widow and contends that the named Executor’s request for funds is premature and prejudicial to the estate.

13. In the meantime, the parties, in due compliance with my orders in paragraph 10(c) of the ruling of 19th May, 2017 and the order made on 30th June, 2017 filed their respective records in respect of their preferred estate agents.

14. The application was argued interpartes on 30/6/2017. Mr. Chebii appearing for the appointed Executor highlighted several aspects of the Supporting affidavit. These include the deposition that the widow had by her affidavit sought Shs 50,000/= for her upkeep while other items therein related to estate expenditure. Thus in his view there was an error in the award of Shs 200,000/= granted to her as maintenance. Counsel reiterated that no award for restocking of the estate businesses could be countenanced as the businesses were profitable.

15. Asserting that the estate is worth about Shs. 100,000,000/= he urged the court to grant a provision amounting to Shs 800,000/= to enable the alleged Executor meet litigation and other estate costs. That the will of the deceased was unchallenged and the executor ought to be allowed to enjoy and exercise his full mandate thereunder without hindrance. Mr. Chebii submitted that the maintenance sum awarded to the widow cripples the Executor who on his part has no access to the estate funds. Finally, Mr. Chebii urged the court to recuse itself and transfer the two matters to a different court for reasons stated in the supporting affidavit.

16. On behalf of the beneficiary J W N, Mr. Gachiengo supported Mr. Chebii’s submission while withdrawing paragraphs 3 and 4 of the beneficiary’s affidavit. He stated that the award to the widow of Shs 200,000/= as maintenance amounts to granting power to her to administer the estate to that extent.

17. Mr. Waigwa appearing for the widow cited Section 26 of the Law of Succession Act in supporting the maintenance order in favour of the widow. He stated that there was no evidence that the widow was receiving other income and that the widow had set out all her needs, in addition to the sum of Shs 50,000/= in her affidavit. He argued that no error has been demonstrated to warrant a review of the court’s order.

18. Regarding the prayer for the release of funds to the named Executor, Mr. Waigwa pointed out that the validity of the will that appointed the Executor itself is in contest and that until the question is resolved, no payment ought to issue to the Executor. That the estate may not recover such funds if it turns out that the will is invalid.

19. Mr. Chebii, in responding, cited paragraph 3 of the widow’s affidavit relating to maintenance, as evidence of admission that the widow only requires Shs 50,000/= for her upkeep. Regarding the question of the executor, he pointed out that the Executor was ordered to instruct an advocate and must be facilitated to defend the interest of the estate.

20. The court has considered the rival affidavits and submissions made by the parties in respect of the named Executor’s application. The impugned orders of 19/5/2017 resulted from mutual affidavit evidence by parties with regard to the twin questions of the widow’s maintenance, primarily, as well as the management of the estate. As the background outlined earlier illustrates, these two matters were thrust to the fore and actively canvassed at the very first appearance by parties before me. No party raised any objection then, or insisted that a formal application be made by the widow or any party on the two questions. Therefore I think it does not lie for the Executor to turn around and impugn the resultant orders on that basis. In my view, that is a mere technicality.

21. Reviewing the Applicant’s material in support of the application, the chief gravamen is that the sum awarded to the widow exceeds what she had intimated in her relevant affidavit, and secondly, that the Executor’s role has somehow been diminished and or impeded by the said order as well as the fact that the Executor has no funds available to him for conducting the litigation.

22. Under Section 29 of the Law of Succession Act, the wife of the deceased is recognized as a dependent of her deceased husband; and in their various arguments prior to the 19/5/2017, none of the parties disputed this. Further none of them disputed that she is entitled to be maintained pending the resolution of the dispute.

23. In my own view, the provisions of Section 26 and 27 of the Law of Succession Act are wide enough to admit an interpretation that allows for periodic payment of specific sums for the maintenance of the widow pendent lite. Therefore, it appears to me that concerning the order of this court in that regard, the only point of contest is whether the figure awarded is erroneous and/or excessive and therefore prejudicial to other beneficiaries to the estate.

24. The application has cited Section 80 of the Civil Procedure Act and Order 45 (1) of the Civil Procedure Rules which in my opinion are redundant. Section 47 of the Law of Succession Act, as read together with Rule 63 (1) and (2) of the Probate and Administration Rules suffice in my view for the purposes of the live prayers herein. This is because Rule 63 (1) of the Probate and Administration Rules applies the procedure providing for review under Order 45 of the Civil Procedure Rules (previously Order XLIV). Rule 63 (1) however contains a caveat regarding the applied provisions of the Civil Procedure Rules.

25. Rule 63 (1) of the Probate and Administration Rules provides that:

“(1) 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 Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (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.

(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.”

26. Order 45 Rule 1 of the Civil Procedure Rules provides:-

“(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 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.”

27. In the case of Nyamogo & Nyamogo Advocates -Vs- Kogo [2001] EA 173, the Court of Appeal distinguished between an error apparent on the record and a mere error or wrong view. The court observed:

“We have carefully considered the submissions made to us by the advocates of the parties to this appeal. 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 a 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 as to be established by a 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 apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”

28. Thus were the Chamber Summons before me to be viewed stricto sensuas a pure application for review as envisaged under Order 45 Rule 1 of the Civil Procedure Rules the Applicants would be required to demonstrate the error complained of. The Applicants’ arguments are two pronged: one, that since the widow’s affidavit asked for Shs 50,000/= as maintenance, an award of Shs 200,000/= is erroneous; and secondly, that the award is excessive in light of the fact that she has other means of income from the business Shamba La Nyama; and additionally the award has given her a “head start” or advantage ahead of other beneficiaries. Evidently, the second limb has no relation to an error apparent and could only be entertained in this application because of the wide discretion of the court under Section 47 of the Law of Succession Act. In the circumstances technical objections by the Respondents that seek to confine the application within the narrow prism of Rule 63 of the Probate and Administration Rules may not avail much.

29. An appreciation of the unique nature of succession causes is one rationale behind the wide latitude given to the court by the legislature not only under Section 26, 27 and 47 of the Law of Succession Act, but also in the Probate and Administration Rules. This is no doubt intended to empower the court to deal with the potentially diverse and unique circumstances and applications arising from such causes. The court therefore, even when dealing with a review application must be guided by the requirements and peculiarities of each case.

30. In light of the foregoing I have attempted to apply Order 45 Rule (1) of the Civil Procedure Rules broadly to fit within the general discretion given to this court under Section 47 of the Law of Succession Act. The question whether an error had been demonstrated remains important notwithstanding. Secondly, as stated in the case of Nuh Nassir Abdi -Vs- Ali Wario & 2 Others [2013] eKLR the court powers under Order 45 Rule 1 of the Civil Procedure Rules is discretionary and should be exercised for useful purposes.

31. That said a technical and narrow definition of the term maintenance without context, as advocated by the Applicants, may not be helpful in this case. The named Executor appears apprehensive that this court’s previous handling of Miscellaneous Civil Application Number 2 of 2016 might cloud its judgment. In my view, that matter forms a relevant and inescapable part of the context of the present case. In that matter, the guardians of the deceased Subject were allowed access to Shs 300,000/= for the maintenance of the deceased Subject who at the time lived with and was cared for by the widow, now Petitioner.

32. Mr. Kimani the named Executor appeared in that case for the beneficiary J W N(a party herein) and did not oppose the provision of Shs 300,000/= for the maintenance of the Subject. There is no evidence that this entire sum of money was spent solely for the upkeep of the deceased. It is reasonable however to assume that a fair sum of it went to the provision of medical care, and the balance to daily needs, which no doubt also catered for the widow. In my view, this background is relevant in approaching the present application.

33. Now turning to relevant affidavit of the widow in this case, a sum of Shs 385,000/= was sought for her upkeep. In its ruling of 19th May 2017, this court observed that:-

“4. From her present affidavit, it seems that the widow, perhaps in light of her status, perceives her role as the person with the responsibility for the management of the estate. Some of the expenses itemized in her present affidavit clearly relate to that role, rather than to her own maintenance. She has no complaint against the present agent, however and proposes he be retained as the estate Manager of the deceased’s property.

5. On the other hand, the Executor of the deceased’s disputed will and J.W.N. complain that the above agent, appointed in 2016 by consent of the parties, is ineffective and operates under the directions of the widow. Further, they assert that the sums claimed by the widow for her maintenance are exorbitant and misplaced. They demand the appointment of one of the estate agents they have proposed as per the court’s earlier direction.

6. Having carefully reviewed the material before me, it is clear that no party disputes the right of the widow to maintenance, and the only question is the appropriate figure to be paid to her. Secondly, the need for the professional management of the estate pending the resolution of the succession dispute is evident to all. It would appear that up until now the estate agent appointed by this court in High Court Miscellaneous Civil Case Number 2 of 2016 has continued to manage the estate of the deceased. No accounts have been rendered to the court to-date, however.”

34. Some of the items rejected by court as related to the management of the estate can be easily identified in paragraph 3 of the affidavit of the widow. These include items 3 (ii), (iv), (vii) to (ix). The remaining items, namely 3 (iii), (v) and (vi) are difficult to categorise as the widow has asserted that she lives at the Maryland Property, while 3 (xi) is for personal expenses. In my own view to confine maintenance of the widow to pure personal expenses amounts to a very narrow application of the term maintenance.

35. Neither the Law of Succession Act nor the Marriage Act define the term “maintenance”. However the definition of a dependent found in the Maintenance Orders Enforcement Act compares favourably with that contained in the Law of Succession Act. The former states regarding a dependent:

“Means such persons as that person is liable to maintain according to the law in force in that part of Her Majesty’s dominions in which the maintenance order was made;”

A maintenance order is defined in the Maintenance Orders Enforcement Act as:-

“an order, other than an order of affiliation, for the periodical payment of sums of money towards the maintenance of the wife or other dependants of the person against whom the order is made, and includes an order or decree for the recovery or repayment of the cost of relief or maintenance;”(emphasis added)

36. Black’s Law Dictionary 6th Edition definesmaintenance as:

“Financial support given by one person to another, usually paid as a result of a legal separation or divorce; especially., ALIMONY.”

Family allowance is defined thereininteraliaas:

“A portion of a decedent’s estate set aside by statute for a surviving spouse, children, or parents, regardless of any testamentary disposition or competing claims. Every state has a statute authorizing the probate court to award an amount for the temporary maintenance and support of the surviving spouse (and often for dependent children). The allowance may be limited for a fixed period (18 months under the Uniform Probate Code) or may continue until all contests are resolved and a decree of distribution is entered.” (emphasis added)

37. The definition of a dependent in Section 29 of the Law of Succession Act is also instructive. It states:

“For the purposes of this Part, "dependent" means-

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents,grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

38. The term maintenance must be interpreted in a reasonable manner as not to defeat the purpose of the above provisions and thereby expose dependent widows to destitution. In my opinion an absurdity would result were the court to consider that all that a dependent widow requires is food, clothing, transport, househelp and medical expenses, without considering items such as security, electricity, housing, water and sewerage etc. I am not inclined to adopt such a narrow view of maintenance as urged upon me by the named Executor Applicant.

39. A quick calculation will show that items in paragraph 3 (iii), (v), (vi) and (xi) of the widow’s affidavit would amount to about Shs 100,000/=. It is not in dispute however that the widow is operating the business Shamba La Nyama. The relevant books of accounts are not before the court, hence it is not possible to confirm whether or not the business is profitable as alleged by the named Executor. There is no doubt however that the business was still a going concern at the time this court awarded maintenance for the deceased Subject.

40. Thus in my view, it is erroneous to rely on the existence of the business to deny the widow her proper maintenance. I think this is a good place to recall the provisions of Article 45 (3) of the Constitution which provides:

“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”(emphasis added)

41. This foregoing provision is replicated in Section 3 (3) of the Marriage Act of 2014. Further Section 16 of the Marriage Act provides for the events leading to dissolution of marriage by stating:-

“A marriage registered under this Act subsists until it is determined by-

(a) the death of a spouse;

(b) a decree declaring the presumption of the death of a spouse;

(c) a decree of annulment;

(d) a decree of divorce; or

(e) a decree of divorce or annulment obtained in a foreign country and recognized in Kenya under this Act.” (emphasis added)

42. In addition to the above, the widow, no doubt an old lady herself is protected by the Constitution which Article 57 provides:-

“The State shall take measures to ensure the rights of older Persons:-

(a) to fully participate in the affairs of society;

(b) to pursue their personal development;

(c) to live in dignity and respect and be free from abuse; and

(d) to receive reasonable care and assistance from their family and the State.”

Needless to say, Section 26 and 27 of the Law of Succession Act, must be read together with the provisions of Article 45 and 57 of the Constitution.

43. Thus, despite disallowing what were clearly estate management costs, the court did think that a sum of money ought to be granted to facilitate the payment of the business rent. Although the global figure of Shs 200,000/= may seem high, nobody will benefit if the business Shamba La Nyama collapses. In the circumstances, there is in my considered view no error in the figure of Shs 200,000/= as awarded. As to whether this sum accords the widow an undue advantage as against other beneficiaries, I would again cite the spouse’s special place under Article 45 of the Constitution and the Marriage Act, and indeed the Law of Succession Act.

44. The estate of the deceased, according to the Executor is worth over Shs 100,000,000/=. Can it therefore be said that sums set aside to maintain the widow constitute a dissipation of the estate or an unfair advantage vis-à-vis other beneficiaries? I do not think so. And while it is a fact that there is a written will deposited in this case, its validity is contested. It would be a travesty of justice to approach maintenance in this case as if a woman’s rights as a spouse under Article 45 of the Constitution are totally negated because her marriage has been dissolved pursuant to her husband’s death. I say this while fully conscious that there exists a pending question relating to disputed will in this case, and without determining the question.

45. In my own view there is no error apparent demonstrated by the Applicant. It seems that the main grouse is that the court’s view as contained in the disputed order was wrong. As the Court of Appeal stated in National Bank of Kenya Limited -Vs- Ndungu Njau, Civil Appeal No. 211 of 1996 [1996] eKLR:

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review”.

46. The foregoing notwithstanding, in light of the nature of this dispute and the time it may take to resolve, I am inclined to review downwards the sum awarded towards rent and business by Shs 50,000/= and therefore reducing the global award of maintenance of the widow to Shs 150,000/= per month with effect from today’s date.

47. The alternative prayer for the recusal of this court was not canvassed in any serious manner. The mere fact that this court also handled Miscellaneous Civil Application Number 2 of 2016 wherein most key orders were made by consent without more, cannot be a basis for recusal.

48. As early as 1988 the Court of Appeal stated inMiller -Vs- Miller [1988] KLR 555 observed that:-

“No party should be placed in a position where he can choose his court. But this is not to say that no circumstances is it possible for a judge to disqualify himself from hearing a case.... There is nothing prejudicial in one Judge making several or more orders in a court record. In practical terms it is advantageous to the parties and therefore in the interest of justice for a judge to familiarise himself with the substance of a court file. In the absence of the evidence that the appellant’s case was prejudiced by some order of the nine orders the trial judge made, it must be held that the submission on this aspect was without substance. No objection was taken to the trial judge making any of the nine orders.... It would be disastrous if the practice was that once there are allegations made against a judge and the judge’s honour is in question, that the judge must disqualify himself. The administration of justice through court would be adversely affected since mischievous parties to cases would obtain disqualification by judges with ease and the consequence would be a choice of trial judge by a party.”

49. And recently in the case of Jasbir Singh Rai & 3 Others –Vs- Tarlochan Singh Rai & 4 Others Petition Number 4 of 2012 [2013] eKLR, the Supreme Court laid down the underlying principle governing recusals by stating that:

“Recusal, as a general principle, has been much practised in the history of the East African judiciaries, even though its ethical dimensions have not always been taken into account. The term is thus defined inBlack’s Law Dictionary, 8th edition (2004) [p.1303]:“Removal of oneself as judge or policy maker in a particular matter, [especially] because of a conflict of interest.”From this definition, it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.

50. In the South African case of President of the Republic of South Africa -Vs- The South African Rugby Football Union & Others Case CCT 16/98 the Constitutional Court discussed principles applicable to recusal motions. The court sated interaliathat:-

“At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable it is counsel's duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront…..A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before the courts and other tribunals. This applies, of course, to both criminal and civil cases as well as to quasi-judicial and administrative proceedings. Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes……In applying the test for recusal, courts have recognised a presumption that judicial officers are impartial in adjudicating disputes. This is based on the recognition that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictoryevidence…..This consideration was put as follows by Cory J in R. v. S. (R.D.):37

‘Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. . . . This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with 'cogent evidence' that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias.’

In their separate concurrence, L'Heureux-Dube and McLachlin JJ say:38

‘Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances=: United States v Morgan, 313 U.S. 409 (1941) at p. 421. The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . .[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A). at pp. 60-61. ’

The test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of judges' impartiality must therefore be taken into account in deciding whether such a reasonable litigant would have a reasonable apprehension that the judicial officer was or might be biased.”

51. Oblique allusions to bias as raised herein cannot suffice. The test where bias is alleged is not the mere likelihood but real danger or possibility thereof. See Uhuru Highway Development Limited -Vs- Central Bank of Kenya & 2 Others Civil Appeal No. 36 of 1996.

52. The named Executor George Ndung’u Kimani and the Beneficiary and J W N (the latter a previous client of the former) respectively appear to suggest in somewhat vague fashion that facts gleaned from Miscellaneous Civil Application 2 of 2016 will somehow cloud or impair the judgment of this court in dealing with the matters before it. It has not been stated that such a result would amount to bias against any party or conflict of interest on the part of the Judge.

53. In my, opinion, these are flimsy assertions appear to spring from mere assumptions that a different court will be shielded from information regarding the preceding proceedings, and further that this court and any other court exposed thereto will be rendered incapable of dealing fairly with issues in the present causes. I do not agree with such a far-fetched proposition and find no merit with the prayer for recusal.

54. As regards the prayer for the release of a sum of Shs 800,000/= to finance litigation and other administrative duties pending litigation, there can be no dispute that the will deposited in court and upon which the named Executor draws his mandate is contested. Mr. Kimani, the appointed Executor being an advocate is well placed to represent himself in court. The term “Executor” is defined in the Law of Succession as “a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided”.

55. As to the special status of an Executor Section 14 of the Law of Succession Acts provides:

“No person, by reason of his being an executor of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.”

56. Having perused the deposited will, it is clear that not only is Mr. Kimani the Executor appointed therein, but also he drew the will in question. Thus as he initially appeared in court, Mr. Kimani was the Executor, advocate for the deceased (in relation to drawing up the will) and advocate and potential witness for the estate of the deceased. Besides it has not escaped the notice of this court and it is relevant, that in Miscellaneous Civil Application Number 2 of 2016 Mr. Kimani was acting for the Beneficiary J W N,also a party in the present proceedings.

57. In my considered view, these multiple roles are not anticipated by Section 14 of the Law of Succession Act and indeed the advocate’s role previously in Miscellaneous Civil Application Number 2 of 2016 may give rise to the appearance of conflict of interest. Thus, this court did at the earliest stage orally raise with Mr. Kimani its discomfort. As a result a counsel, Mr. Chebii, was appointed to represent the named Executor. Be that as it may, no copy of instruction or fee note has been annexed to the application by the named Executor, nor any material to justify the payout of Shs 800,000/= from the estate of the deceased.

58. At paragraph 15 to 17 of the Supporting affidavit the said Executor has deponed:-

“15. THAT at a more personal level as executor I am fairly incapacitated by an earlier reluctance by the Court to make an order for financial facilitation of myself as executor, under the same discretion it has provided for the widow.

16. THAT when the honourable court stated that the issue be revisited only after the validity of the will was determined conclusively, but on the same stroke of the pen ordered that I should not represent myself for the fear of conflict of interest, an issue that now bothers me is whether I am to personally now to fund estate litigation from my private funds.

17. THAT since I am unable to sustain financing my current counsel, it therefor means that an outright disadvantage can be read in the situation, where the party challenging the deceased will get funding of Kshs 200,000/= per month, while a valid executor is exposed as waste of estate through prejudicial orders are bound to happen.” (sic)

59. The first observation to make is that the status of the widow of the deceased is not in dispute, nor her rights as a dependent of the deceased even if intestacy is disputed. Conversely the named Executor’s position is dependent on the validity of the challenged will, and it is difficult to predict the outcome thereof. This is not to say that the court does not appreciate the named Executor’s present difficulty. In order for justice to be done there is need for equality of arms and, the Executor requires to have means to enable him fund litigation and related needs.

60. However, the court has to act prudently especially because there is a lingering question as raised by Mr. Waigwa for the Petitioner widow: How will the estate recover any payments made to the named Executor should the contested will be eventually found to be invalid? That is a sobering consideration for this court.

61. It would seem to me that a practical way out of this dilemma is the appointment of an Administrator pendente lite under paragraph 10 of the Fifth Schedule of Law of Succession Act which provides:-

“Pending any suit touching the validity of the will of a deceased person, or for obtaining or revoking any probate or any grant of letters of administration, the court may appoint an administrator of the estate of the deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing the estate, and the administrator shall be subject to the immediate control of the court and shall act under its direction.”

62. Corollary to the solution is the need for the expedited determination of the question of the validity of the will deposited in court. The role of the contemplatedpendente lite Administrator would in this cause be solely to bring transparency and independence as regards any payments to be made to the advocate of the Executor, for the limited purpose of proving the will and participating in the objection proceedings arising out of the Petition by the widow, for Letters of Administration. On my part, I cannot think of any better suited person than the Deputy Registrar of this court. The court directs that the Deputy Registrar of this court does act as Administrator pendente lite for the stated limited purpose.

63. In the execution of her mandate the Deputy Registrar will receive and tax any bills from the advocate for the Executor as may be received by her from the Executor for services rendered, allow for expenses related to or incurred in respect of the stated proceedings and give orders for payment limited thereto, as well as receive accounts thereof.

64. Thus while the figure of Shs 800,000/= sought appears to have been plucked from the air, I accept in principle the need to facilitate the appointed Executor’s advocate and, consequently the named Executor, in the proceedings in respect of proving the will and prosecution of the objections herein. In the circumstances I would most reluctantly grant an order for a one-off payment of a sum of Kshs 150,000/= (One Hundred and Fifty Thousand only) to the named Executor from the same account from which the widow’s payments will be drawn. This sum is to be accounted for to the Deputy Registrar as it is spent. Subsequently any further request by the named Executor have to be dealt with as prescribed at paragraph 63 above.

65. Out of prudence, this court will at the close of every substantive proceeding make, on application by counsel concerned, appropriate general orders as to payment of costs concerning attendances and related matters. These arrangements will in my humble view unlock the present impasse so that the two causes can proceed to hearing and determination without undue delay, and thereby limit litigation costs.

66. Now turning to the question of appointment of an estate agent to manage the rental properties of the deceased in particular, I will reproduce below the relevant criteria and comments as set out in my ruling of 19th May, 2017:-

“7. I believe that in the circumstances of this case, it would be imprudent to appoint a new agent before such accounts are rendered, but more importantly, none of the estate agents/firms now proposed by the respective parties have tendered evidence that they meet all of the following criteria:-

a) they are duly incorporated.

b) they are duly registered and licensed under the Estate Agents Act to carry out estate agency work, both as individuals and/or as firms.

c) that they are tax compliant.

d) they have solid experience in the business.

8. The need to have a reputable professional firm manage the vast estate of the deceased has become more acute now that there is an ongoing dispute in respect of the succession. The dispute may take some time to resolve. The court would be failing in its duties if it were to allow the dissipation of the estate through the appointment of less than demonstrably reputable estate agents in this regard.

9. While I am not satisfied with the proposed agents touted by J.W.N. and by the Executor, I do not think that it will be a good idea to retain the estate agent appointed in Miscellaneous Civil Case No. 2 of 2016, and whose profile does not seem to meet the professional level required at this point in this matter. This is not to say that I agree with the suggestion by the Executor and the beneficiary J.W.N. that the said agent is a mere lackey of the widow. Rather, it is a reflection of the peculiar, need of the moment.”

67. Pursuant to the above, I directed at Paragraph 10 that:

“c) The parties will present two new proposals as to the estate agents they would prefer to manage the deceased’s estate, and who meet the criteria set out herein, within the period stated in (b) above, to enable the court make a fresh appointment.”

See also directions (a) and (b) given in that regard on 30/6/2012.

68. This court has assessed the estate agents proposed before and after my ruling of 19th May 2017, based on the criteria stated and subsequent directions. The table below captures the extent to which each of the proposed agents complies with the said criteria and directions.

ANALYSIS IN RESPECT OF PROPOSED ESTATE AGENTS

NAME OF AGENT WELLSPRING MARKETING & ESTATE MANAGEMENT

(Proposed by Jane Wangari Nderitu) KINGSWAY AGENCY

(Proposed by Jane Wangari Nderitu) MS SKYLINK COMMERCIAL AGENCY

(Proposed by Mariana Njeri Gathenya) POINT A COMMERICAL AGENCIES LIMiTED

(Proposed by Jane Wangari Nderitu) MUIGAI COMMERCIAL AGENCIES

(Proposed by Jane Wangari Nderitu)

CRITERIA Registered as business name. Registered as business name. Registered as business name. N/A County Trade Licence and Incorporation Certificate Attached.

a) Incorporation

b) Registration and Licenced under the Estate Agents Act. Trade Licence under County Government Act attached.

No registration or current licence under Estate Agents Act attached. N/A Proprietor Registration and Current Licence under Estate Agents Act attached. Trade Licence by County Government of Nakuru

No registration or Current Licence under Estate Agents Act attached Copy of County Trade Licence and Registration Certificate under Estate Agents Act attached.

No current licence attached.

c) Tax Compliance. N/A N/A Current Tax Compliance Certificate and Copy of PIN Certificate attached. Current Tax Compliance Certificate Attached. No Current Tax Compliance Certificate Attached.

d) Solid experience by evidence on Company Profile. No clients named in attached Curriculum Vitae. General letting proposal attached. Introduction Letter (profile) and a Sample Statement to one Client attached. Elaborate Company Profile. Elaborate Company Profile.

69. Looking at the above matrix, it is evident that on the important criteria of registration under the Estate Agents Act, only Ms Josphat Gitau Ndungu t/a Skylink Commercial Agency and Muigai Commercial Agency are registered. However while the former has produced a current licence under the said Act, the latter, despite its elaborate profile has not. A trade licence under the County Government Act is not a substitute for professional registration and licence under the Estate Agents Act. Thus whereas a proposed company or firm may exhibit a rich profile, the lack of professional legal status to practice as estate agents immediately disqualifies such entity. Tax compliance is also an important consideration in a matter of this nature.

70. Reviewing the material attached, I am inclined to conclude that Ms Josphat Gitau Ndungu t/a Skylink Commercial Agency appears to be the most responsive to the criteria, despite its brief profile. In the circumstances, I do appoint Ms Josphat Gitau Ndungu t/a Skylink Commercial Agency to manage the estate of the deceased. All rents and profits received are to be deposited into the Barclays Bank Queensway House Branch Account Number 0278105105and accounts thereof rendered every six months to the Deputy Registrar of this court with effect from 1st March, 2018.

71. With regard to the objections raised in respect of the two Petitions, I direct that the two be treated, for purposes of Rule 17 (5) and (6) of Probate and Administration Rules, as Cross-Petitions to each other. Further that each Petitioner will file an answer thereto, which may include any witness affidavits as the case may be, to the adverse Petition within 21 days of today’s date. Thereafter a date will be fixed in the registry for purposes of taking further directions. The costs of the application will abide the outcome of the Petitions. Parties have liberty to apply.

Delivered and signed at Naivasha this 6th day of October, 2017.

In the presence of:-

Mr. Gachiengo holding brief for Mr. Chebii for the Executor Petitioner and appearing for the Beneficiary Jane Wangari Nderitu

Mr Waigwa for the Petitioner (widow)

Court Assistant – Barasa

C. MEOLI

JUDGE