[2022] KEHC 15189 (KLR)

In re Estate of John Mwaniki Kahiro (Deceased) (Succession Cause 12 of 2015) [2022] KEHC 15189 (KLR) (8 June 2022) (Ruling)

Neutral citation: [2022] KEHC 15189 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause 12 of 2015

SN Mutuku, J

June 8, 2022

Between

Rodha Wanja Mwaniki

1st Petitioner

Charles Kahiro Mwaniki

2nd Petitioner

Mary Nyambura Mwaniki

3rd Petitioner

and

Rahab Wangui Mwaniki

1st Objector

Gilbert Maina Mwaniki

2nd Objector

Ruling

Introduction 1. The Grant of Letters of Administration Intestate in respect of the Estate of John Mwaniki Kahiro was issued on May 20, 2008 to Rodha Wanja Mwaniki, Mary Nyambura Mwaniki and Stephen Waweru Mwaniki. An objection was raised by Rahab Wangui Mwaniki and Gilbert Maina Mwaniki who filed Summons for Revocation of the Grant dated January 18, 2019seeking to have the of the Grant revoked. Directions were given that the matter proceeds by way of oral evidence.

2. The matter was heard before Hon. Mr. Nyakundi who on January 30, 2018heard the 2nd objector, Gilbert Maina Mwaniki (Gilbert). The case did not proceed further before Justice Nyakundi was transferred. On March 12, 2019, the matter was placed before Hon. Mr. Justice Mwita. On April 5, 2019, directions were issued by Justice Mwita that the Summons for Confirmation dated April 9, 2014 be heard de novo and that Summons for Revocation dated January 18, 2019 be withdrawn.

3. On November 6, 2019 hearing, de novo, for Summons for Confirmation with Rahab Wangui Mwaniki testifying as the first witness. After three witnesses testified: Rahab Wangui Mwaniki, Harrison Mwangi Wainaina and Roseline Susan Wambui, Justice Mwita was transferred and I took over the conduct of this Cause.

Application 4. On May 11, 2022I took over the proceedings and parties agreed to continue with the hearing from where Justice Mwita had left. After taking the evidence of Cecilia Waithera Maina as the objector’s witness number 4, Mr. Kimeru, learned counsel for the objector. addressed this court in an oral application seeking to adopt the evidence tendered by Gilbert before the order to start the case de novo was issued. His application was simply that the evidence adduced by Gilbert before Hon. Mr. Justice Nyakundi, before the directions to start the case de novo were issued, be adopted by this court. He submitted that the witness had been cross-examined by the same counsel for the petitioners and in order to save court’s time it was reasonable to adopt the evidence. He submitted that Gilbert is an Objector in this Causeand not an idler and that to lock his evidence out would be prejudicial to his case. Mr. Kimeru cited article 159 (2) (d) of the Constitution to back up his application.

5. The application to adopt the evidence of Gilbert was opposed by Mrs Ndirangu, learned counsel for the petitioners. She submitted that when the application was made to start the case de novo, the court made a ruling allowing that application and that the said ruling cannot be set aside by this court because it is a court of equal jurisdiction. Mrs Ndirangu submitted that this is not a matter falling underarticle 159 (2) (d) and that given that the matter did not proceed from where it had reached but started de novo, the evidence cannot be adopted. Further, she submitted all parties have a right to a fair trial and that the witness had been sitting in court when the other witnesses were giving evidence and by this act, the objectors waived his right to testify.

Determination 6. I have considered the rival submissions. The record shows that there is a direction from Justice Mwita that the case starts de novo. This was after Gilbert had testified before Justice Nyakundi. To my mind, the starting point is always the law. The applicable law in this regard is Order 18 Rule 8 (1) of the Civil Procedure Rules, 2010 which provides for the power of the court in dealing with evidence taken by another judge as follows:8(1)Where a judge is prevented by death, transfer, or other cause from concluding the trial of a suit or the hearing of any application, his successor may deal with any evidence taken down under the foregoing rules as if such evidence had been taken down by him or under his direction under the said rules, and may proceed with the suit or application from the stage at which his predecessor left it"

7. Further, section 1A of the Civil Procedure Act also provides the overriding objective of law to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act as follows:1A(I) the overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)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, to that effect, to participate in the process of the Court and to comply with the directions and orders of the Court.

8. The court in Wycliffe Mwavali Ondari v County Council of Narok & another[2022] eKLR cited with approval the case of Mandavia v Rattan Singh [1968] EA 146 where it was stated that:“… it seems to me that the proper test is whether the successor Judge is in as good a position as his predecessor would have been in to evaluate the evidence and submissions which have been put forward and to continue the hearing on that basis.”

9. Justice Gikonyo in the Whcliffe Mwavali Ondari case, above, set the test to be applied in deciding whether or not the case should start de novo as follows:“(15)In sum, in deciding whether or not a case should start de novo, the court should consider: -i)Whether the successor Judge is in as good a position as his predecessor would have been in to evaluate the evidence and submissions;ii)Availability of witnesses who have testified; maybe they are not available or cannot be procured or cannot be procured except with great expense of time, money;iii)The dictates of the overriding objective, and the principle of justice in article 159(2)(b) of the Constitution; inter alia delay and cost effect of the order;iv)The prejudice that will be suffered by the parties; balancing of rights is important here.

10. I am alive to the fact that parties before me are not asking the court to start the case de novo but are asking me to adopt evidence adduced before directions were given to start the case de novo. In other words, the issue is whether the evidence adduced before the order was given to start the case de novo should be adopted after the hearing starts de novo. It is my view that the test in the case above is similarly applicable here. The goal of starting the case de novo is to ensure that there is no prejudice to any party and that all the parties are accorded a fair trial. The overriding objective under section 1A of the Civil Procedure Act is also relevant.

11. In starting the case de novo, the court takes evidence afresh and takes into account only the evidence so adduced leaving out the evidence that had been adduced before directions to start case de novo had been issued. The witnesses gets to be heard afresh. This also gives the new judge the opportunity to observe the demeanour of witnesses as they testify. I do not think this falls under the ambit of article 159 (2) (d). It is not a technicality. It much more than a mere procedural technicality. It is a substantive issue that if not properly handled might prejudice parties to the suit.

12. In this matter, Gilbert Maina Mwaniki was in court when the objector’s witnesses were testifying. The Petitioners are yet to testify. Even if the Petitioners had testified while Gilbert was in court, Gilbert is not any ordinary witness. He is one of the objectors. Expecting Gilbert to have been told to go out when the witnesses were testifying, whether petitioner’s or objector’s witnesses would be prejudicial to his case. It is akin to asking a party to be absent when his case was being heard. This would, to my mind, be denying such a party justice. It would be best if Gilbert were allowed to testify afresh instead of adopting his evidence earlier adduced.

13. I think I have said enough to demonstrate that to deny Gilbert the opportunity to testify in this matter will be prejudicial to the objector’s case. There is an order that this matter starts de novo. It will only be fair if this court were to take the evidence of Gilbert afresh. This will afford this court a chance to observe him giving evidence and counsel for the Petitioners will have a chance to cross examine him afresh. In my considered view, there will be no prejudice for the petitioners. Gilbert will therefore tender his evidence in these proceedings. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 8TH JUNE, 2022. S. N. MUTUKUJUDGE