[2022] KEHC 1457 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 86 OF 2021

IN THE MATTER OF THE ESTATE OF THE LATE JOSEPH KAMAU KIMANZI

CAROLINE MUTWA MWENDE MWINZI..... PETITIONERS/RESPONDENTS

KALISA MWINZI

VERSUS

KIBERITI MERCHANTS LIMITED.....................................................APPLICANT

R U L I N G

1. This is a Summons brought under Section 47 of the Law of Succession Act, Cap 160 Laws of Kenya and Rule of the Probate and Administration Rules and Order 40 rule 4 (3) & (7) of the Civil Procedure Rules.

2. The applicant George Ngui Kimanzi seeks the following orders;

1. THAT this application be certified as urgent and that service thereof be dispensed with in the first instance.

2. THAT pending the hearing and determination of this Application this Honorable Court be pleased to stay implementation and execution of its orders of 19th August 2021 which orders were issued summarily and conclusively at an ex-parte stage leaving nothing for inter-partes hearing.

3. THAT the orders issued by this Honorable Court on the 19th August 2021 be set aside and discharged and the Petitioners’ Application dated 17th August 2021 be subjected to inter-partes hearing on merits.

4. THAT the petitioners be condemned to pay the costs of this Application.

3. The grounds for the application are set on its face and his affidavit sworn on the same date. The applicant deponed that he is a director of Kiberiti Merchants Limited, and hence has the authority to swear the affidavit. He annexed the authority.

4. His complaint is that this court issued ex-parte and adverse orders on 19th July 2021 with respect to properties belonging to Kiberiti Merchants Limited without hearing Kiberiti Merchants Limited.

5. He depones, and for the avoidance of doubt I quote from his affidavit, verbatim;

“18. THAT KIBERITI MERCHANTS LIMITED the legal owners of parcels of land mentioned above was condemned unheard and adverse orders granted against its properties.

19. THAT even KASYETHAU NOBLE TRADING LTD the legal owner of Land Parcel Number MIGWANI/KYAMBOO/2883 was condemned unheard and advance orders issued against its property.

20. THAT even adverse orders were issued affecting land parcel Number WAITA/WAITA/1430 even before any shred of evidence on ownership thereof was provided both in the main cause and in the Supporting Affidavit of the 1st petitioner.

21. THAT it is quite baffling that an order of a general nature was issued in prayer (b) above.

(b) “THAT the court be pleased to grant the Applicant herein limited letters of administration ad litem for purposes of instituting criminal and civil suits on behalf of the Estate against intermeddlers for losses and mesne profits arising from their illegal meddling in the affairs of and property belonging to KIBERITI MERCHANTS LIMITED.

Without any disclosure of what property belonged to KIBERITI MERCHANTS LIMITED.

22. THAT the law and rules of natural justice dictates;

“audi alteram partem” The rule imposes a peremptory duty of every person, body or tribunal which is vested with the authority of resolving a dispute to fairly hear both parties and consider both sides of the case before making a decision on the matter. (No man shall be condemned unheard). The court ought and is obliged to grant equal opportunity to both sides/parties to present their cases or divergent viewpoints and in doing so should hold the scales fairly and evenly between the said parties.”

23. THAT prior notice to a party to be affected by an order is conclusion precedent to fair hearing, and any hearing undertaken without due notice to the affected party violates the requirements of natural justice, it’s unfair and its fragrant (sic) disregard of all the cardinal principles of natural justice.

24. THAT he late JOSEPH KAMAU KIMANZI had no shares, interests or anything legal or beneficial(sic) KIBERITI MERCHANTS LIMITED. I now attach hereto a copy of the CR 12 form indicating the shareholders and directors of KIBERITI MERCHANTS LIMITED and mark it as GNK V.”

6. The application is opposed via Grounds of Opposition dated 31st August 2021 and filed on 6th September 2021;

1. THAT the Application is hopelessly incompetent as the applicant lacks capacity to sue on behalf of the Estate of the deceased without Grant of Letters of Administration.

2. THAT the Application seeks to misdirect the court into thinking that the Orders of 19th August, 2021 conclusively determined the ownership of suit properties yet those orders were only sought to preserve properties which are part of the estate of the deceased pending the issuance of the grant and ultimate distribution of the estate.

3. THAT the Application is an attempt to use this court to sanitize gross intermeddling being perpetuated by the deponent herein, George Ngui Kimanzi and his cohorts.

4. THAT further and without prejudice, the instant Summons ignores the crucial provisions of Rule 73 of Probate and Administration Rules which reserves the inherent jurisdiction of the family court, ‘to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court’ as well as Section 47 of the Law of Succession Act which empowers the family court to ‘entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.’

5. THAT the reasons given in seeking to set aside the Orders are not tenable. The sole Director/Shareholder for KIBERITI MERCHANTS COMPANY LIMITED is deceased, hence these proceedings. The applicant has not demonstrated how he came to be a Director/Shareholder of the Company, if at all.

6. THAT the Summons is fatally incompetent, it discloses no reasonable cause of action in law, is scandalous, frivolous and vexatious, and is otherwise an abuse of the process of the court.

7. THAT the orders sought not to issue as they are not legitimate.

8. THAT the Applicant has not cause of action left and should be dismissed with costs.

7. The respondent also filed a Replying Affidavit sworn on 3rd August 2021. In that affidavit she depones, inter alia and I quote;

4. KIBERITI MERCHANTS COMPANY LIMITED was incorporated on 5th January 2021 by the Joseph Kamau Kimanzi (Now deceased) it was meant to succeed Kiberiti Apartments the business name which was a partnership between myself and the deceased (CM-a) Property previously owned by Kiberiti Apartment were then transferred to Kiberiti Merchants Company Limited.

5. THAT I reiterate the contents of my Affidavit dated 17th August 2021 in its entirety and add that the Applicant herein is incompetent for lack of capacity. KIBERITI MERCHANTS COMPANY LIMITED has only one Shareholder and Director – JOSEPH KAMAU KIMANZI (Now deceased). Nothing has been filed by the Applicant herein to show how the shares of the deceased transmitted to them. They have simply annexed uncertified document purporting to be the Company’s CR – 12 as at 24th August 2021. The said CR – 12 still exhibits the deceased’s mobile telephone number as the company’s contact details and is fundamentally different from the contact details on a letterhead annexed to their application and marked GNK – 1. All the other annextures are the same ones I annexed to my Application contested herein.

9. THAT on 3rd May, 2021, I petitioned for Limited letter of Administration ad colligenda bona for leave to collect and preserve the properties jointly owned by me and my late husband. The family Registry refused to admit the Petition for lack of Death Certificate (CM-e) Meanwhile, the family of the deceased refused to take give me a copy of burial permit to ensure I do not file for succession.

10. THAT on 25th May 2021, I finally managed to get a copy of Death Certificate from the Department of Correctional Services and was able to file for Grants ad colligenda bona and was granted Orders of preservation of various movable and immovable property in NAKURU SUCCESSION CAUSE NO. E46 OF 2021 (CM-f)

11. THAT on 30th June 2021, the same applicant herein namely GEORGE NGUI KIMANZI filed objection in NAKURU SUCCESSION E46 OF 2021 and the court that was due for vacation was kind enough to hear the matter that same afternoon. Ruling reserved for 9th July 2021 was delivered on 24th July 2021. The objection was dismissed, the Conservatory Orders confirmed and I was directed to file for full Grant within 30 days’ failure to which the Orders would lapse. (Annexed herewith and marked CM-g is a copy of the very well-reasoned Ruling).

12. THAT on 4th August 2021, Kalisa Mwinzi and I petitioned for Full Grant and we have paid for gazettement (CM – h). Before it is gazette and I am granted Letters of Administration I have moved to preserve the estate.

13. THAT all this while, I have been trying to register Caution over other immovable properties located in Mwingi, Kitui County but the Lands Registry has not been cooperative. As a result, on 18th August 2021, I filed the Chamber Summons Application herein seeking Conservatory Orders and on 19th August 2021, the duty court certified the Application urgent and granted prayers 3 and 4 pending issuance of Grants and ultimate distribution of the Estate (see Applicant’s annexure GNK –VI Par. 2 last line)

She annexed the Ruling of this court in Succession Cause Number E46 of 2021 dated 24th July 2021.

8. The applicant through his counsel filed Submissions on 8th December 2021. It is submitted inter alia

“On our part we do not understand why Your Ladyship you grant the order absolutely without subjecting it to inter-partes hearing at some stage despite being invited to do so by the Petitioners. We hold the view that courts only grant or deny orders as sought by the parties!!! With due respect there was miscarriage of justice here. We cannot therefore be faulted for urging this court to set aside the order and subject it to inter-partes hearing so that our client can be heard before any orders are either granted or refused.

In prayer 4, the Petitioners sought conclusive orders that would have to be subjected to inter-partes Hearing. In fact, unless a party sought that you granted such a prayer at an ex-parte stage pending Further Hearing and or disposal of the Petition, the court would be seen to have gone over- board by granting such a relief.

The Cardinal Rule of Procedure is that all Applications in a matter must be subjected to inter partes Hearing unless the rules of procedure expressly state that such an Application be entertained ex-parte.

Would Limited Grant of Letters of Administration ad litem normally issued under Paragraph 15 of the 5th Schedule of the Law of Succession be issued in a Petition for a full grant? A careful reading of paragraph (1) at page 136 of the Law of Succession by Hon. W. Musyoka (J), the write now a Judge has stated: -

Grant ad Litem

“It is granted to enable someone represent the estate where the estate has been sued or it intends to sue. It is sought where it is necessary to make an estate a party to a suit (Re-Succession: Limited grant [2000] AE 4955 – copy is enclosed). It is usually taken out where a third party wishes to make the estate a Defendant in an action and no person who is entitled to a grant will take out one.”

A copy of this page is attached hereto.

Your Ladyship.

We humbly urge you to allow our client’s Application dated 27th August 2021 as prayed.”

ANALYSIS AND DETERMINATION

9. I have carefully considered the application, the rival affidavits, the grounds of opposition, the submissions filed and the authorities cited.

10. Three intertwined issues stand out for determination.

a. Whether the applicant was condemned unheard in violation of the rules of natural justice?

b. Whether the Court made any adverse orders against the applicant? Whether the orders herein affect the applicant adversely?

c. Whether the respondent, as a person entitled to a grant, was entitled to the limited grant that was issued by this court?

11. On 17th August 2021 an application, a Chamber Summons was sent to my email headed;

IN THE MATTER OF THE ESTATE OF JOSEPH KAMAU KIMANZI (DECEASED)

IN THE MATTER OF AN APPLICATION BY CAROLINE MUTWA MWENDE MWINZI.”

It was brought under Sections 67, 47, 54 and Par. 18(2) of the 5th Schedule of the Law of Succession Act; Under Rules 12, 36, 37, 38, 49, 59, 67, 70 and 73 of the Probate and Administration Rules; Under Sections 1A, 1B, 3, 3A and 63(e ) of the Civil Procedure Act, 2010; and under Order 39 Rule 5, Order 40 rules 1, 4 & 10 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.

and sought orders;

“1. THAT the instant Application be certified urgent and the same be heard ex-parte in the first instance.

2. THAT pending inter-partes hearing of this Application, this court be pleased call for and peruse File No. NAKURU SUCCESSION CASUE E46 OF 2021 - IN THE MATTER OF THE ESTATE OF JOSEPH KAMAU KIMANZI (DECEASED) for purposes of satisfying itself that the Conditions in the Ruling and Orders of the Court issued on 24th July, 2021 have been complied with and thus confirm the Conservatory Orders issued thereon.

3. THAT pending inter-partes hearing of this Application, this court be pleased to issue Restriction over sale, transfer and/or otherwise disposal of the following property of the deceased; -

a. L.R. NO. WAITA/WAITA 1430

b. L.R. NO. MWINGI/KANSANZU/2883

c. L. R. NO. MIGWANI KYAMBOO/2239

d. L.R. NO. MIGWANI/KYAMBOO/2297

4. THAT this court be pleased to grant the Applicant herein limited Letters of Administration ad litem for purposes of instituting criminal and civil suits on behalf of the estate against intermeddlers for losses and mesne profits arising from their legal meddling in the affairs of and property belonging to KIBERITI MERCHANTS COMPANY LIMITED.

5. THAT costs be in the cause.

12. One of the grounds was that this court had made conservatory orders in Cause E046 of 2021,that the applicant was yet to be issued with Grant of Letters of Administration which would donate to her the powers to collect and preserve the Estate and take full responsibility and accountability of the estate and its operations.

13. It is noteworthy from the pleading in that application that the applicant herein was not a party. In fact, no orders were sought against the applicant herein, the only thing that the Respondent herein, the applicant in the impugned application was seeking from this court, were orders for the preservation of the estate of the deceased pending the administration of the estate.

14. The issue of the applicant herein having been condemned unheard cannot arise because neither he nor Kiberiti Merchants Limited were parties to the application. That submission, in my view, is misdirected. There was no dispute between the applicant herein and the applicant in the impugned application that was placed before me in that application. It appeared to me that the key issue was the preservation of the estate pending the grant of letters of administration to the applicant as clearly indicated in her response. Indeed, the appropriate process would have been for the applicant to seek to be made a party to the application and if as a party he was denied audience or orders made against him, then the applicant’s current application would have been justified. To that extent I am in agreement with counsel for the applicant, if the applicant was a party and I made ex parte orders without hearing him, then this would have been justified. But as I pointed out a reading of the application is clear that it was ex-parte despite containing the terms “pending the hearing and determination…”as there was no respondent named. I made orders accordingly.

15. My Ruling in Succession Cause Number E46 of 2021 of 24th July 2021 addressed in detail the issue of an alleged directorship of the applicant in Kiberiti Merchants Limited. I made an analysis of the documents he relies on in this application to confirm his position. I pointed out that I had been made aware that a Civil Suit was going on before another Judge to determine issues of shareholding in Kiberiti Merchants Limited, and I explained there that in the meantime there was before me evidence to show that the property belonged to the deceased. Hence the averments made by the applicant in his affidavit in support of his application are taken care of in that Ruling, as to why I formed the view that it was in order to issue orders to preserve the properties even those named in this application.

16. I have considered the submission with regard to the issuance of a Limited grant and the two authorities cited by the applicant. It was argued that that a limited grant was not available to the applicant under Schedule 5 of The P&A Rules, as she was a person entitled to administer the estate.

17. A reading of Section 67 of the Law of Succession Act as read together with Rule 36(1) of the Probate and Administration Rules, clearly provide for a Limited Grant for collection and preservation of the assets of the estate, where necessary, before the grant of representation is issued. Section 67 states :

“67. Notice of application for grant

(1) No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.

(2) A notice under subsection (1) shall be exhibited conspicuously in the courthouse, and also published in such other manner as the court directs.

Rule 38 of the P&A Rules lays down a caveat and the procedure of what ought to happen.

“38. Grant under rule 36 or 37 not to prejudice making of full grant

(1) The making of a grant of representation under rule 36 or 37 shall be without prejudice to the right of the representative so appointed or of any other person to apply under any other provision of these Rules for a grant of representation to the deceased.”

18. In this case, there are now substantive administrators to the estate, who have powers over the estate of the deceased, hence that as to who has control over the estate of the deceased is overtaken by events.

19. There is before me already Summons for the Revocation of that Grant dated 31st December 2021. It is my view that the parties ought to pursue the same as the Estate cannot be left without an administrator.

20. With respect to orders preserving the estate, this is the mandate of this court under the Law of Succession Act for as long as there are fights over the estate, before its administration. This court is empowered to preserve the same and will give the benefit of doubt to the estate in the first instance, as the rightful owner of the estate is not available to protect his property and have it in the hand of those who are his rightful heirs through the processes laid down under the Law of Succession Act.

21. Before I conclude, I note the number of applications coming to court from all sides even before the admiration has started. At the end this estate will still have to go through that process. So I wish to bring to the attention of all the parties and their counsel herein the provisions of Article 159 (2) of the Constitution which mandates me to encourage parties to pursue alternative dispute resolution mechanisms. There are several set out there. We have Court Annexed Mediation, and we have AJS. These modes give parties the opportunity to talk to one another with the help of a mediator or elders annexed to the court. There is the opportunity to set out the dispute for the determination by the court and what issues the parties can agree on. These services are available for free. If ADR fails, the courts are still here to hear the parties and determine the disputes.

22. With that said, it is my considered view that this application has three (3) challenges, partly overtaken by events, partly by my Ruling of 24th July 2021 In Succession E046 of 2021, and lack of merit. It is dismissed. Costs in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH, 2022.

MUMBUA T MATHEKA

JUDGE

In the presence of;

Edna C/A

Mr Karanja Mbugua for applicant N/A at 10. 11 a.m.

Ms Sabaya for respondent