[2017] KEHC 377 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO.480 of 2002

IN THE MATTER OF THE ESTATE OF JOHANA GETHI KABURI (DECEASED)

ANGELA WAIRIMU GETHI…........................PETITIONER/APPLICANT

VERSUS

FRANCIS MWANGI GETHI…........................................1ST RESPONDENT

PETER MUGAMBI MACHARIA………………………2ND RESPONDENT

RULING

1. The applicant, Angela Wairimu Gethi, filed a Notice of Motion dated the 28/04/2015 under Certificate of Urgency premised under no specific provision of any law seeking for the following orders;

(a) The consolidation of this Cause withSuccession Cause No. 283 of 2002;

(b) An order for citation of the dependants, administrators and all beneficiaries of the estate of the late Rose Waceke Gethi to take out Letters of Administration to her estate;

(c) That pending the hearing of the application the dependants administrators or beneficiaries be restrained from transferring and charging or otherwise dealing with land known as KIRIMUKUYU/GACHUIRO/113;

2. The Application is supported by the grounds on the face of the application and the Supporting Affidavit made by the applicant and is dated the 28th April, 2015.

3. A brief overview of the facts is as follows; the deceased herein namely Johanna Gethi Kaburi died on the 14/03/1981 and he was the applicants’ father-in-law; he was the registered proprietor of the land parcel known as Kirimukuyu/ Gachuiro/113; she had filed succession proceedings in respect to the deceased’s estate in Succession Cause No.480 of 2002 without knowing that Rose Wacheke Gethi (hereinafter referred to as ‘Rose’(now deceased) and a former spouse of the deceased) had also filed a succession cause as well over the same estate; the applicant depones that she only came to know about the existence of Succession Cause No. 283/2002 when the Land Registrar wrote to her requesting for the removal of the caution that she had placed over the abovementioned parcel of land, that is Kirimukuyu/ Gachuiro/113;

4. Both probate matters relate to the estate of the same deceased person namely Johanna Gethi Kiburi and also relate to the same suit property; Rose had been issued with a Grant to administer the deceased’s estate; and the applicant had also been issued with a Grant to administer the deceaseds estate and a Certificate of Confirmation; the only difference is that each Succession Cause has its own different set of beneficiaries; and it is for these reasons the applicant seeks the prayers set out in the Notice of Motion.

APPLICANTS SUBMISSIONS

5. The applicant had filed an application for the Revocation of the Grant issued to Rose; that Rose died the day before the application for revocation was filed; therefore the applicant now seeks that an order for citation do issue to the dependants/beneficiaries of the estate of the late Rose;

6. The applicant also prays for the consolidation of the Succession Cause No.480 of 2002 with Succession Cause 283 of 2002 due to the fact that both succession causes relate to Johana Gethi Kaburi (deceased) and the same subject property forms part of the estate of the deceased.

7. The cases referred to by the applicant which set out the principles for consolidation for this court to take into consideration are; LSK vs Richard Etanga Wamalanya; EACC vs Wilson Gachanja; Agnes Muthoni;the principles are as follows;

(i) The suits are similar and deal with similar issues and have similar parties;

(ii) Where it is expedient to save time and costs;

(iii) To facilitate efficient disposal of suits.

8. Since the suit property had devolved to Rose, the applicant also seeks for orders for the preservation of the suit property;

9. The applicant prayed that the application be allowed and the orders sought be granted.

RESPONDENTS SUBMISSIONS

10. In response the respondents relied on the replying affidavit made by Francis Mwangi Gethi which was filed on the 9/07/2015 and on the accompanying written submissions dated the 27th September, 2017; therein it is deponed that the application is not properly titled and is also brought by way of Notice of Motion; that it offends the provisions of Rules 58(1) and 59 of the Probate & Administration Rules which provide that all succession matters must be properly titled and bear the title “In the matter of the estate of the Deceased” and that applications under the Law of Succession Act must be brought by way of summons and not by way of Notice of Motion ;

11. That the orders sought for consolidation are incapable of being granted and are not available to the applicant; reason being that Succession Cause No. 283 of 2002 was disposed of thirteen years ago and Certificate of Confirmation of the Grant was issued distributing the property in issue;

12. That the prayer for an order for citation is misconceived and incompetent as it can only be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renounces his right thereto;

13. That the instant cause is res-judicata and an abuse of the process of the court;

14. The prayer for an injunction is also misconceived; who is to be restrained? That the beneficiaries of Rose are and her estate are not identifiable; such a prayer must await a cause being filed in the estate of Rose;

15. For those reasons the respondent urged this court to dismiss the application with costs for being an abuse of the due process of court.

ISSUES FOR DETERMINATION

16. After taking into consideration the presentations of both parties this court finds the following only one issue for determination;

(i) Whether the application is properly titled and properly before the court;

(ii) Whether the respondents Replying Affidavit is admissible;

(iii) Whether the application for citation of the dependants of the estate of the Late Rose Waceke Gethi is merited;

(iv) Whether the applicant has made out a prima facie case for the grant of injunctive orders ;

(v) Whether an order for consolidation of the two causes is merited;

ANALYSIS

Whether the application is properly titled and properly before the court;

17. The respondents contend that the application is not properly titled in that it is titled as a Notice of Motion as opposed to being titled as a Summons and is premised under no provisions of the of Law of Succession Act; indeed such omission can be expected from a litigant acting in person but not expected from a fully-fledged firm of advocates;

18. Nevertheless this court will exercise its discretion in line with the provisions of Article 159(2(d) and will proceed to administer justice without undue regard to technicalities; this court finds that the failure in intitulation and in setting out the enabling provisions of law is a technical procedural omission which does not defeat the applicants right to substantive justice which is to have her application heard and determined;

19. The application though not properly headed is deemed to be properly before this court.

Whether the respondents Replying Affidavit is admissible;

20. There is evidence in the form of a Grant issued to Rose permitting her to administer the estate of the deceased; there is also evidence in the form of a death certificate which establishes the fact of the demise of Rose; therefore the position is that even though the respondents are beneficiaries in Succession Cause 283 of 2002, there must be evidence to demonstrate that the respondent Francis who made the replying affidavit was given authority by the other beneficiaries to represent their interest in the deceased’s estate and was duly authorized to make and swear the replying affidavit;

21. Having perused the court record at length this court finds that the Replying Affidavit dated the 9th July, 2015 is unsupported by any authority in writing in the form of a Consent Letter, Power of Attorney or Limited Letters of Administration; the question that arises is whether such an affidavit is admissible; but the saving grace is that the deponent is a beneficiary and has deponed that he is possessed of the facts and information by stating in his Replying Affidavit as follows;

“EVERYTHING DEPONED TO HEREIN is true to the best of my personal knowledge, information and belief.”

22. Therefore the lack of authority does not invalidate the affidavit as the facts contained therein are within his personal knowledge which then means that in law this evidence would be admissible;

23. The respondents Replying Affidavit is therefore found to be admissible and properly before this court;

Whether the application for citation of the dependants of the estate of the Late Rose Waceke Gethi is merited;

24. The late Rose according to the death certificate annexed passed on the 16th November, 2003 which to date translates to a period of 14 years; the Respondent has not annexed any Limited Letters of Administration to his Replying Affidavit nor has he deponed therein that he is the administrator of the estate of Rose; the delay in taking out Letters of Administration over a period of 14 years is indeed sufficient reason for seeking the order for citation of the dependants of Rose;

25. The dependants and beneficiaries of the estate of Rose are known, are identifiable and can be named; the applicant being a beneficiary is found to be entitled to a Grant in the event the other beneficiaries renounce their rights; and so as to expedite the process this court finds that there is need to cite the dependants of Rose to take out Letters of Administration.

26. This court finds that the order sought for citation is merited;

Whether the applicanthas made out a prima facie case for the grant of injunctive orders ;

27. Upon perusal of the court record this court has noted the existence of deep animosity between the rival parties; the Certificate of Confirmation on record indicates that the subject property had been granted to Rose absolutely; and the transfer of the property had been effected to Rose; the applicant has deponed that she too is a beneficiary to the estate of the deceased herein and has lived on a part of the estate for a period of forty years; that having been left out as a beneficiary by Rose she is also apprehensive that she may be left out again;

28. This court has noted that the applicant and the respondent and the other dependants of Rose have a common interest in the estate; the concerns of the applicant that the respondents may interfere with the property and that she may be left out again are found to be valid; and in the event that she loses her inheritance such a loss cannot be compensated by damages; this court is satisfied that the applicant has made out a prima facie case;

29. Be that as it may this being a succession cause there is no provision in the Law of Succession Act for granting of injunctive orders and by dint of Rule 63 of the Probate and Administration Rules certain provisions of the Civil Procedure Rules are not applicable to succession matters; in particular Order 40 that deals with injunctions is not applicable to succession matters;

30. In the best interest of justice and also so as to safeguard and preserve the property this court will invoke its inherent discretionary powers as provided under Rule 73 of Probate and Administration Rules and grant a preservatory order as against the respondents against the disposal or intermeddling with the land parcel known as Kirimukuyu/ Gachuiro/113 being the property of the estate of Rose Waceke Gethi ;

Whether an order for consolidation of the two causes is merited ;

31. As for consolidation it is this courts considered opinion that the instant cause cannot be consolidated with Succession Cause 283 of 2002 as the matter was concluded and the property devolved to Rose who is now deceased; but upon the demise of Rose a fresh cause is envisaged and this instant cause can be consolidated with the cause that shall arise from the citation; this application is therefore premature as there exists no substantive cause to the estate of Rose to entitle the applicant to the orders sought; the applicant must await the outcome of the citation; but the applicant is at liberty to revisit the issue of consolidation once the issue of representation of Rose’s estate is resolved;

32. Therefore this court finds that the order for consolidation is not merited;

FINDINGS AND DETERMINATION

33. For the forgoing reasons this court makes the following findings and determination;

(i) The failure in in-titulation and in setting out the enabling provisions of law is a procedural technicality that does not defeat the applicants right to have the application heard and determined;

(ii) The respondents Replying Affidavit is admissible and is properly before the court;

(iii) The application for citation is hereby allowed; the applicant to file and serve the application for citation of the dependants of the estate of the Late Rose Waceke Gethi within 30 days from the date hereof;

(iv) A preservatory order shall issue against the respondents, their servants their agents and persons claiming under them against the disposal or intermeddling with the land parcel known as Kirimukuyu/ Gachuiro/113 being the property of the estate of Rose Waceke Gethi;

(v) The parties at liberty to apply for further directions;

(vi) The application for consolidation is not merited.

(vii) Each party to bear their own costs of this application.

It is so Ordered.

Dated, Signed and Delivered at Nyeri this 2nd day of November, 2017.

HON.A. MSHILA

JUDGE