[2022] KEHC 10013 (KLR)

In re Estate of Joel Mulwa Muthengi (Deceased) (Succession Cause 431 of 2017) [2022] KEHC 10013 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10013 (KLR)

Republic of Kenya

In the High Court at Makueni

Succession Cause 431 of 2017

GMA Dulu, J

July 12, 2022

IN THE MATTER OF THE ESTATE OF JOEL MULWA MUTHENGI (DECEASED)

Between

Philip Mutuku Mulwa Muthengi

1st Petitioner

Margret Munini Mulwa

2nd Petitioner

and

Mary Agatha Mulwa

Proposed Interested Party

Ruling

1. Before me is an application dated 26th January 2018 brought by way of Summons under section 29 and 66 of the Law of Succession Act (cap. 160), and Rules 16, 49, 59, 70 and 73 of the Probate and Administration Rules.

2. The application has been brought by Mary Agatha Mulwa described as the first wife of the late Justice Jackson Nicholas Kasanga Mulwa, and seeks the orders as follows –i.An order that the applicant be made an interested party in these proceedings and be allowed to participate in the proceedings.ii.That the costs of the application be paid out of the estate and by the duly appointed administrators of the estate of Joel Mulwa Muthengi.

3. The application was filed with a supporting affidavit sworn on 29th January 2018 by the applicant, in which it was deponed that she was the first wife of Jackson Kasanga Mulwa the other wife being Martha Kasanga Mulwa and that Jackson Kasanga Mulwa (the husband) was the son of the late Joel Mulwa Muthengi.

4. It was also deponed that in the chief’s letter dated 7/7/2015, the late Jackson Nicholas Kyengo Kasanga Mulwa was named as the first son of the late Jackson Mulwa Muthengi, and that in the pleadings filed by Martha Kasanga Mulwa in Makueni Succession Cause No. 431 of 2017, the first family of the late Jackson Kasanga Mulwa (the applicant and her children) were not disclosed.

5. It was deponded that the late husband of the applicant was a joint owner on 50/50 basis, of land parcel LR No. 8857 located at Mavoko and that both houses of her late husband were entitled to the estate herein, and that there was still pending in court - Milimani Succession Cause No. 959 of 2015 in the Estate of Jackson Nichlas Kasanga Mulwa. The deponent listed the two wives and children of the late Jackson Nicholas Kasanga Mulwa in the affidavit, and maintained that her children and herself were beneficiaries of the estate herein.

6. The application has been opposed through Grounds of Opposition filed by Iseme Kamau and Maema advocates for Martha Kasanga Mulwa dated 14/11/2018 as follows –i.The court lacks jurisdiction to adjudicate over the issue of ownership of property as the same is the preserve of the Environment & Land Court.ii.The application is incompetent, defective, lacks merit and is an abuse of the court process having been brought under the wrong provisions of the law.iii.The applicant has not placed sufficient material before the court (for it) to exercise discretion in her favour.iv.The applicant has not demonstrated any identifiable stake which is distinguishable from one advanced by other parties to the cause and in particular the petitioner.v.The applicant is guilty of laches having filed the application more than two years after the filing of the petition.vi.No prejudice will be borne by the applicant if the orders sought are not granted.

7. Though there are other pending applications in this matter, the court directed that this application be disposed of first. The application was canvassed through filing of written submissions.

8. In their submissions, the applicant’s counsel Mr. Mbulo & associates, stated that the applicant being one of the windows of the late Justice Kasanga Mulwa who is a son of the deceased herein, has an interest in the estate herein to be joined as an interested party, as her children and herself have been left outof this succession cause, while the children of her co-wife were included. Counsel relied on a number of decided court cases, especially Nairobi HC. Succession Cause No.1828 of 2007 – Estate of Stone Kathure Muinde wherein the legal requirements for joining an interested party in succession proceedings were considered, and the court ultimately concluded that an interested party can only be joined through exercise of inherent discretion of the court, as there was no statutory provision relating thereto.

9. On their part M/s Iseme, Kamau & Maema advocates for Martha Kasanga Mulwa relied on the grounds of opposition filed and several decided court cases, including the Supreme Court decision in Francis Karioko Muruatetu & Another –vs- Republic & 5 others (2016) e KLR in which the threshold for joining an interested party in a case was explained by the Supreme Court.

10. Having considered the application and submissions filed, I find that none of the named contestants is a stranger to the other. The applicant Mary Agatha Kasanga Mulwa and Martha Kasanga Mulwa are surviving widows of the late Justice Kasanga Mulwa. The estate herein is the estate of their father in law who died before Justice Kasanga Mulwa. It is of note that the administrators herein Philip Mutuku Mulwa Muthengi and Margaret Munini Mulwa have not filed any responses or participated in the hearing of the application.

11. That said, I am in agreement with what was stated by W. Musyoka J. in Nairobi HC Succession Cause No. 1828 of 2007 – Estate of Stone Kithule Muinde – that there is no provision under the Law of Succession Act (Cap.160) for joinder of an interested party in succession proceedings, unlike in civil cases. I am also in agreement with the Judge that the court may, in appropriate cases, join an interested party using the provisions of Rule 73 of the Probate and Administration Rules, which provides as follows:-73. 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 or to prevent abuse of process of the court.”

12. The Grounds of Objections herein, have been raised to the application, not by the administrators on record, but by someone else Martha Kasanga Mulwa. In my view, the right objector to the application, if any, should have been the administrators, not Martha Kasanga Mulwa.

13. On the objection or contention that this court lacks jurisdiction to adjudicate over the issue of ownership of the property (land), I agree that issues of ownership to land are the preserve of the Environment & Land Court, since the coming into effect of the 2010 Constitution. Even before 2010, the succession court did not have jurisdiction to adjudicate over ownership of land which would have to go before the civil court for determination. However, in our present case, the applicant has not come to this court for determination of the issue for ownership to land. She has merely come to this court seeking to be enjoined as an interested party, and has merely mentioned the existence of a dispute on the issue of ownership to land to show her and her sons interest in the matter. Thus that objection has no merits and has to fail. I dismiss that objection.

14. On the objection or contention that the application is incompetent for being brought under wrong provisions of the law, that objection has to fail as well as I have found already in this ruling, that there is no specific statutory provisions in Succession matters, for joinder of interested parties, and that such joinder can be done by the courts, on the basis of the court’s inherent powers or discretion of the court in order to do justice. I thus find no merits in this objection.

15. On the objection that the applicant has not placed sufficient material before the court to enable the court to exercise its discretion in her favour, in my view, the applicant having demonstrated that she is a wife of a deceased’s son herein, and having indicated that she and her children have an interest in the estate herein, and the fact that the petitioners have not opposed the application, it cannot be said that the applicant has not placed sufficient material before this court to exercise its discretion.

16. With regard to the objection that the applicant has not demonstrated any identifiable stake distinguishable from the one advanced by other parties, again the petitioners have not said anything in opposition to the application. In addition, none of the children of the deceased have said anything in response to the petition. What is clear to me however is that there are disputes relating to the letters of administration herein, thus the pendency of other applications, and that the applicant wants to participate as an interested party. She has thus demonstrated a sufficient stake as a survivor spouse of da son of the deceased herein.

17. On the objection that the applicant is guilty of lashes (inordinate delay), for having filed this application more than two (2) years after the filing of the petition for letters of administration, I note that there are already pending applications herein which include the same applicant. Thus one cannot say that this application, which was filed seeking different orders from other pending applications, was filed after inordinate delay.

18. I thus find that this court can exercise its inherent jurisdiction and discretion to allow the application.

19. As for costs, they will be in the cause, this being a family succession matter.

20. Consequently, I allow the application dated 26th January 2018, and order as follows:1. An order be and is hereby issued that the applicant is hereby joined as an interested party in these proceedings and is allowed to participate in the proceedings.2. The costs of the present application will be in the cause.

DELIVERED, SIGNED & DATED THIS 12THDAY OF JULY, 2022, VIRTUALLY AT MAKUENI COURT.………………………………….GEORGE DULUJUDGE