[2017] KEHC 9777 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

SUCCESSION CAUSE NO. 972 OF 2012

IN THE MATTER OF THE ESTATE OF JOHN LAWRENCE DAVID GAITHO (DECEASED)

ANNAH WAMAITHA GITHINJI.....................................APPLICANT

VERSUS

GEORGE GAKIO KINOGA.......................................RESPONDENT

RULING

This matter has come up for a ruling on the Application filed on 5th January 2016 which is an Application brought under Order 45(1) rule 1(1). Herein the Respondent prays for orders that this court reviews, sets aside, stays its Orders made in the Ruling of 12th June, 2015 which are dated 22nd July 2015. This application is based on the grounds that;

1. The reliefs granted were not prayed for in the summons dated 17th June, 2014.

2. There exists an error apparent on the face of the record as the said Order disposed the Summons for Rectification of Grant of Letters of Administration and the Certificate of confirmation of Grant before it was heard.

In the Affidavit in support of the Application, the Respondent averred that the Summons dated 17th June 2014 prayed sought orders for preservation of the estate of the deceased pending hearing and determination of the Summons for revocation of Grant of Letters of Administration and Certificate of Confirmation of Grant which he filed. He also averred that the rental income from L.R NO. DAGORETTI/KANGEMI/776 is the only asset in the estate of the deceased and this is what advocates for the Applicant submitted on; that the issues of surrender of title deed of the above stated land parcel, eviction of the Respondent from the suit property, demolition of the Respondent’s semi permanent buildings and distribution of the estate of the deceased were not prayed for in the Summons dated 17th June 2014 and were not canvassed in the submissions. The Respondent further averred that he will suffer grave prejudice if he surrenders the title deed for the property in dispute and will have no remedy if the estate is distributed before his Summons for Revocation of Grant and Certificate for Confirmation of Grant are heard which have been rendered nugatory by the Orders in paragraph 1,2 and 3 of the Orders of 22nd July 2015.

The Orders issued in the Ruling of 12th June, 2015 are;

a. The Respondent shall surrender the Title deed of the suit property I.R. Dagoretti/Kangemi/776 to the Administrator.

b. The Respondent to give vacant possession of the suit property to the beneficiaries to remove the semi permanent structures and leave the land.

c. The administrator to hold Title deed and suit property in trust for herself and the three (3) children to share equally.

d. Any party is at liberty to apply.

e. Each party to bear its own costs.

The above orders were made to the Application of 27th June 2014 which sought interim orders for the preservation of the estate of the deceased pending the final determination of the application for revocation of Grant.

The Respondent further filed copies of his Summons for Revocation of Grant dated 26th March 2014 wherein he had prayed for orders that the Grant issued on 17th September, 2012 and the Certificate of Confirmation of Grant issued on 14th May, 2013 to the Respondent be revoked on the grounds that the Respondent is not a widow of the deceased and that she concealed material facts of this case from the court therefore she was not entitled to be issued with a grant of letters of administration of his estate.

This court addressed this at length in its Ruling of 12th June, 2015 as follows;

“The issue of whether the Applicant is a wife to the deceased or not was ventilated but a grant was issued and confirmed and has not been set aside amended or revoked. The issue of the two (2) children of the administrator this Court cannot confirm voluntary parental responsibility as the deceased is no more.

However, as long as the confirmed grant remains valid, the property of the deceased ought to be distributed among the existing spouse and children of the deceased. The Respondent shall allow the property of the deceased to be shared by the Applicant and three (3) children of the deceased unless he can prove that the Applicant is not a wife of the deceased.”

The Respondent has still not provided any evidence proving that the Applicant was not a wife to the deceased. The applicant stated she is wife/widow of deceased the Respondent did not controvert this fact by cogent evidence. Assuming she is not the deceased's wife, there are children of the deceased who have priority to the deceased's estate to him as brother of the deceased. The issue of his beneficial interest to the estate of the deceased was contradictory first that he was left the property by the deceased and secondly left the property to hold for the deceased's niece none of which as proved.

The Respondent’s submissions of 16th June, 2016 on the Summons dated 24th November 2015 are that this court gave final orders barring the Respondent from being heard on his Summons of 26th March 2016 yet the Petitioner had applied for temporary orders for the preservation of the Estate of the deceased (the Rental income be in a Joint bank account in the names of the Advocates for the Petitioner and the Respondent) The Respondents further submitted that a litigant cannot be chased away from the seat of justice without having been given a chance to address the court on his claim/complaint/grievances.

The Applicant filed written submissions dated 23rd March 2017 on the following points of law:

1. The summons filed by the Respondent is misconceived, bad in law and an abuse of the court process. Because instead of complying with Orders of this court to surrender the Title Deed of the contested suit property he chose to file summons for revocation dated 26th March, 2014. The daughter of the deceased referred to by the Respondent in his Affidavit of 24th March 2014 to whom he was to give proceeds of the suit property after selling it is also listed as a beneficiary in the certificate of confirmation of grant of 14th May 2013. No new facts have been given by the Respondent to warrant the court to review or set aside its orders.

2. The Summons for revocation of grant does not meet the grounds for revocation under Section 76 of the Law of Succession Act CAP 160 Laws of Kenya.

3. The Applicant has no locus standi to the summons. The Applicant relies on Section 35 of the Law of Succession Act CAP 160 Laws of Kenya. which provides that;

“Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to -

(a) the personal and household effects of the deceased absolutely; and

(b) a life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.

They also relied on Section 66which provides the order of priority of persons whom the court in its discretionary power may grant letters of administration.

In conclusion the Applicant submitted that the Respondent is employing a delay tactic by filing summons aimed at frustrating the course of justice. The Applicant further seeks prayers that the summons dated 24th November, 2015 be dismissed with costs.

DETERMINATION

As provided by Article 165(3)(a) of the Constitution of Kenya, 2010 this court has unlimited original jurisdiction in criminal and civil matters.

This matter is brought under the Civil Procedure Rules, 2010. Section 1A (1) and (3) of the Civil Procedure Act, 2010 provides that the overriding objective of the Act and the Rules is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes governed by the Act. A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

In order to further the overriding objectives above prescribed, the court shall, as provided by Section 1B of this Act, handle all matters presented before it with the aims of timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.

Further, this court has discretion in making provision for dependants as provided under Section 27 of the Law of Succession Act. The same discretion is also granted under Section 66 of this Act as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made and the court is directed by the order of priority so provided under this section.

Therefore this court granted the orders in the Ruling of 12th June, 2015 within the law in full exercise of its discretion and in compliance with the overriding objectives of the Civil Procedure Act, 2010.

The Applicant failed to provide evidence as to what error exists on the face of the record. The Court did not grant orders of opening a joint account to collect rent because the did not establish beneficial interest to the late brother's estate over his widow and children.

Secondly, the houses he claimed he built on the land, he did not prove on a balance of probabilities that he built any houses by production of documents. The Court has not identified the error alleged on the face of the record. Such error must be one that strikes one on the mere looking at the record and would not require any long drawn process of reasoning on points where there may be conceivably two opinions. Such error must be one that can be located without any elaborate argument. It should be by a mere glance of the judgment.

The Applicant herein is seeking a rehearing of the same issue under the guise of review. The Applicant ought to pursue an Appeal which he is entitled to pursue. A court cannot reopen a matter unless on legal basis for a review as it is functus officio.

DISPOSITION

1. This application is dismissed

2. No orders as to costs.

3. Any aggrieved party may apply.

DELIVERED SIGNED & DATED IN OPEN COURT ON 10TH NOVEMBER 2017

M.W.MUIGAI

JUDGE

IN THE PRESENCE OF;

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