[2022] KEHC 14933 (KLR)

In re Estate of Jonathan Chege Nguyai (Deceased) (Succession Cause 1341 of 2002) [2022] KEHC 14933 (KLR) (Family) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14933 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1341 of 2002

MA Odero, J

October 7, 2022

IN THE MATTER OF THE ESTATE OF JONATHAN CHEGE NGUYAI (DECEASED)

Between

David Kamari

Plaintiff

and

Margaret Njoki Nguyai

Respondent

Ruling

1. Before this Court for determination is the Notice of Preliminary Objection dated 26th April 2022 by which the Plaintiff David Kamari objects to the Notice of Motion dated 10th August 2021 filed by the Defendant. The objection was premised upon the grounds that:-“1. The firm of Kiaritha & Associates advocates are not properly on record in compliance to the Civil Procedure Rules Order 9 Rule 9 which is applicable to this case as the judgment of the Subject of this proceedings had already been delivered.2. The Applicant lacks locus standi to institute this suit on behalf of the deceased Jonathan Chege Nguyai without having any valid letters of Administration in accordance with the law.3. The Application is grossly incompetent and a blatant abuse of the process of the court on the basis aforementioned and the same ought to be dismissed with costs.”

3. The Defendant Margaret Njoki Nguyai opposed the Notice of Preliminary objection through her Response dated 11th May 2022. The matter was canvassed by way of written submissions. The Plaintiff filed the written submission’s dated 13th June 2022 whilst the Defendant relied upon her written submissions dated 22nd June 2022.

Background 4. This Succession Cause relates to the estate of the elate Jonathan Chege Nguyai who died intestate in Nairobi on 13th December 2001. Following the demise of the Deceased his widow (the Defendant herein) applied for and obtained Grant of letters of Administration Intestate which were issued by the court on 30th July 2002. The Grant was thereafter confirmed on 4th May 2005.

5. Prior to the death of the Deceased a two (2) acre parcel of land carved out of L.R. No. Kabete/Nyathuna/285 was transferred to him pursuant to a Decree in Civil Case Number 473 of 1993.

6. The court vide a Ruling delivered on 20th January 2015 issued an order directing the Hon Deputy Registrar to sign the transfer in respect of the said two (2) acres of land. The Plaintiff sought a stay of execution of the above order pending appeal and a stay was granted on 22nd July 2020. However, the Plaintiff failed to comply with the conditions for stay and the stay lapsed. The Defendant then filed an application dated 10th August 2021 seeking assistance in having the two (2) acre parcel of land surveyed. The Plaintiff then filed this Notice of Preliminary objection.

Analysis and Determination 7. I have carefully considered this Notice of Preliminary Objection, the Response filed thereto as well as the written submissions filed by both parties. The Plaintiff argues that the law firm of Kiaritha & Associates Advocates are not properly on record for the Plaintiff as they purported to come on record after judgment had been delivered, thus contravening the provisions of order 9 Rule 9 of the Civil Procedure Rules, 2010.

8. The Plaintiff further argues that the Defendant lacks locus standi to institute suit on behalf of the estate of the Deceased.

9. The Defendant counters that having been issued with a confirmed Grant she does have requisite locus standi. The Defendant also submits that since she had previously been acting in person, the filing by her advocate of a Notice of Appointment was sufficient to fulfil the requirement of Order 9 Rule 9. She prays that the Preliminary Objection be dismissed.

10. The definition of a Preliminary Objection was given in the oft cited case of Mukisa Biscuit Manufcturing Co. Ltd vs West End Distributors Ltd [1969] EA where it was held that:-“.....A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

11. Two issues arise for determination in this matter. First, whether the Defendant has locus standi to act for the estate of the Deceased and secondly, whether the Law firm of Kiaritha & Associates are properly on record for the Defendant.

(i) Locus Standi 12. The term ‘Locus Standi’ is a legal term, which literally means, ‘place of standing’. It refers to the right of a party to file an action or to appear in a suit. Without sufficient ‘locus standi’ a suit is deemed to be a non-starter and must therefore fail.

13. As stated earlier the matter relates to the estate of Jonathan Chege Nguyai who died in Nairobi on 13th December 2001. The Defendant Margaret Njoki Nguyai who is the widow of the Deceased applied for and obtained a Grant of letters of Administration Intestate issued in her name on 30th July 2002. A copy of that Grant is annexed to the Defendants Response dated 11th May 2022 (Annexture ‘A’).

14. Therefore the Grant issued to the Defendant was confirmed on 4th May 2005. A copy of the confirmed Grant appears as Annexture ‘B’ to the Defendants Response. The confirmed Grant issued to the Defendant has never been revoked and/or set aside. It remains valid. Accordingly, I find that the Defendant does have the legal authority to represent the estate of the Deceased in any matter. She therefore has locus standi to litigate this matter. I therefore dismiss this ground of the Preliminary objection.

(ii) Whether the law firm of Kiaritha & Associates is properly on record. 15. The Plaintiff contends that the law firm in question is not properly on record for the Defendant. That the Advocate who came in on record for the Defendant after judgment had been entered failed to comply with Order 9 Rule 9 of the Civil Procedure Rules which require that before a change of Advocate after judgment can be effected, one must seek and obtain an order of the court or obtain the consent of the opposite party.

16. Order 9 Rule 9 of the Civil Procedure Rules 2010 (CPR) provides as follows:-“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

17. The Defendant on her part submits that since she was previously acting in person she did not require to seek consent in order for an Advocate to come on record for her.

18. I have carefully perused the record in this matter. The Defendant was initially being represented by the firm of Ms Ngugi Ribiro Advocates. On 10th December 2019 the Defendant gave notice of her intention to act in person.

19. Following delivery of the judgment the Defendants current Advocate filed a notice of Appointment dated 11th October 2019.

20. It is important to consider the reason why consent is made a requirement in order 9 Rule 9 before a change of Advocate can be effected after judgment. In the case ofS.K. TawardivsVeronica Muehlemann [2019] eKLR Hon Justice Korir states as follows:-“In my view, the essence of Order 9 Rule 9 CPR is to protect advocates from mischievous clients who will wait until a judgment has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away.”

21. In this case the Defendant had been acting in person, she then hired an Advocate to represent her after the judgment had been delivered. The Defendant was not replacing any advocate and therefore did not need consent of her previous lawyer to engage new counsel. In the circumstances, I find that the Notice of Appointment filed by her Advocate suffices.

22. The Plaintiff finally opposed the application filed by the Defendant contending that the same was incompetent as it is filed by way of a Notice of Motion whereas the Probate and Administration Rules provide for filing by way of summons. This is a vexatious argument. Article (159)(2)(d) of the Constitution of Kenya 2010 clearly exhorts court to administer justice ‘without undue regard to procedural technicalities’. What matters is the substance of the application not the heading.

23. All in all I find that this Preliminary objection has no merit whatsoever. The same was clearly filed as a delaying tactic and amounts to an abuse of court process. Finally, I dismiss in its entirety the Notice of Preliminary Objection dated 26th April 2022 and I direct that the costs will be met by the Plaintiff.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. .................................MAUREEN A. ODEROJUDGE