[2022] KEHC 10587 (KLR)

In re Estate of Joseph Maingi Muriithi (Deceased) (Succession Cause 1212 of 1998) [2022] KEHC 10587 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10587 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1212 of 1998

MA Odero, J

July 15, 2022

Between

Rebecca Wanjiru Muriithi

Applicant

and

Benson Riitho Muriithi

Respondent

Ruling

1. Before this Court for determination is the Notice of Motion dated 21st July 2021 by which the Applicant Rebecca Wanjiru Muriithi seeks the following orders:-“1. That the Respondent be and is hereby cited for contempt for disobedience of court orders issued on the 20th April 2021. 2. That the Respondent be is hereby ordered to attend court at the inter-parties hearing Application or further orders of the court.3. That the Respondent be removed as an administrator and be ordered to account for all the assets of the estate and make good any losses.4. That an order for committal be and is hereby made against the Respondents agents/assigns to prison for a period of six (6) months.5. That this honorable court through the Deputy Registrar executes the completion/transfer documents on behalf of the Respondent who has declined to do so.6. That upon execution by the Deputy Registrar of this Honourable court in order (5) above the same be deemed as sufficient instrument for completion/transfer documents.7. That the cost of this Application be borne by the Respondent.”

2. The Application was premised upon section 5(1) of the Judicature Act Cap 8 Laws of Kenya, Sections 47, 83 (f) & (g) of the Law of Succession Act, Order 51 Rule of the Civil Procedure Rules 2010, Sections 3 3A & 63 ( c) of the Civil Procedure Act, Rule 73 of the Probate & Administration Rules and all other enabling provisions of the law and was supported by the Affidavit of even date as well as the Further Affidavit dated 21st March 2022 both sworn by the Applicant.

3. The Respondent Benson Riitho Muriithiopposed the Application through his Replying Affidavit dated 4th March 2022 and his Supplementary Affidavit dated 9th May 2022. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 21st March 2022 whilst the Respondent relied upon his written submissions dated 9th May 2022.

Background 4. This Succession Cause relates to the estate of Joseph Maingi Muriithi (hereinafter ‘the Deceased’) who died intestate on 5th November 1995. The Deceased was survived by the following persons: -a)David Wamae Muriithi – son (now Deceased)b)Benson Riitho Muriithi – sonc)Jane Hiuko – Daughterd)Norman Maina Muriithi – sone)Charles Mugambi Muriithi – sonf)Rebecca Wanjiru Muriithi – Daughter

5. The matter has had a long history in this court with several applications having been filed and determined by various judicial officers.

6. Eventually the parties entered into a consent dated 30th October 2007 (Annexture RWM-‘1’) which consent was adopted by the court on 14th November 2007. Thereafter a certificate of confirmed Grant dated 19th March 2008 (Annexture (RWM-‘1’) was issued in the names of Joseph Maingi Muriithi and Benson Riitho Muriithi. The agreed mode of distribution of the estate was set out in the confirmed Grant dated 19th March 2008.

7. The Applicant alleges that the Respondent who is an administrator of the estate has failed to complete the distribution of the estate in line with the consent order and the confirmed Grant dated 19th March 2008.

8. The Applicant filed a summons dated 1st October 2012 in which she sought for orders as follows: -“1. That the Administrator Benson Riitho Muriithibe ordered to render to the court a true and just account of status of the distribution of the Estate.2. That the administrator be ordered to complete the Administration of the estate in respect for all matters set out in the certificate of confirmation of grant dated 19th march 2008 and the consent order dated 28th November 2007 pursuant to the consent dated 30th October 2007 filed on 9th November 2007. 3. That the administrator be ordered to produce to court a full and accurate inventory of the liabilities of the deceased and a statement of settlement of the said liabilities and specifically an account of how the proceeds of the ten (10) acres excised out of LR No 7107/2 have been utilized.4. That in default of the administrator completing the distribution within 60 days he be removed as such administrator and account for all the assets of the estate and make good any losses.5. That the administrator be held personally liable for the costs of this application.”

9. That application was heard and vide a Ruling delivered on 29th April 2021 Hon Lady Justice Stella Mutuku made the following orders:-1. That the Administrator, Benson Riitho Muriithi, shall within 60 days from today’s date render true and just account on the status of the distribution of the estate of the deceased herein. Further, the Administrator shall disclose to this court the part of the estate that is involved in court cases.2. That the Administrator, Benson Riitho Muriithi, shall complete the administration of the estate in respect of all matters set out in the certificate of confirmation of grant dated 19th March, 2008 and the consent order dated 28th November 2007. 3. That the Administrator, Benson Riitho Mureithi, shall produce in court within 60 days from today, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate audited account of all dealings therewith up to the date of the account.4. That in default any party shall be at liberty to apply.5. That each party bears their own costs.

10. The Applicant claims that the Respondent as Administrator of the estate has failed to comply with the above orders. She states that in total disregard and blatant breach of the Orders issued on 29th April 2021, the Respondent has to date not done the following:-“a. Rendered a true and just account on the status of the distribution of the estate of the deceased and disclosed to the court the part of the Estate that is involved in court cases;b. Completed the Administration of the estate in respect of all matters set out in the Certificate of Confirmation of grant dated 19th March, 2008 and the consent dated 28th November, 2007. c. Produced a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate audited account of all dealing therewith up to the date of the account.”

11. The Applicant urges the court to cite the Respondent for contempt and further urges that the Respondent be forthwith committed to civil jail in order to prevent the court orders being rendered a mere advisory opinion. The Applicant prays that the court come to the aid of the beneficiaries and ensure that the estate is fully distributed.

12. As stated earlier the application was opposed. The Respondent confirms that he is fully aware of the contents of the Ruling delivered by Hon Lady Justice Mutuku on 29th April 2021.

13. The Respondent states that upon receiving a copy of the said Ruling he immediately instructed his advocate to prepare the Affidavit dated 10th August 2021 detailing the steps that had been taken in distributing the estate. That he also contacted the family surveyor to avail a detailed status report on the steps, which had been taken to convert the Title Deeds of the properties in Nyeri.

14. In respect of the order requiring that he provide a detailed Statement of Accounts and liabilities of the estate, the Respondent states that he did file an Audited Statement of Account on 4th July 2019 which Accounts were duly served upon the Applicants Advocate.

15. The Respondent further explains that he was not able to comply with the sixty (60) days time limit set by the court as he was still awaiting the status report from the family surveyor. That the sixty (60) period was due to lapse on 18th July 2021 but on that date the Respondent Advocates informed him that the matter was yet to be mapped on the Judiciary e-filing platform thus they were unable to file any documents.

16. The Respondent pleads that the delay in complying with the courts ruling was not intentional but was occasioned by circumstances beyond his control. The Respondent avers he has not intentionally failed to comply with all the courts orders thus this application seeking to cite him for contempt has no basis whatsoever. He urges the court to dismiss this application in its entirety with costs.

Analysis and determination 17. I have carefully considered this application, the Affidavits filed in reply as well as the written submissions filed by both parties. The only question for determination is whether the Respondent is in contempt of the courts orders and whether the orders sought by the Applicant ought to be granted.

18. Black’s Law Dictionary 9thEdition defines contempt as follows: -“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature.”

19. It is trite that courts do not make orders in vain. A person to whom a court order is directed is obliged to obey said order not withstanding the fact that he may not agree with the order or how unpalatable said order may be.

20. The High Court is vested with powers to punish any person for contempt of court, which includes disobedience of court orders.

21. The Law concerning Contempt of court Proceedings is found under Section 5 of the Judicature Act and Section 63 (c) of the Civil Procedure Act. Section 5 of the Judicature Act provides as follows:-“3. (1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by their High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in exercise of the original criminal jurisdiction of the High Court.”

22. In the case of Econet Wireless Kenya LimitedvsMinister For Informationand Communicationof Kenya Authority [2005] eKLR Hon Justice Ibrahim (as he then was) stated as follows: -“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void. (emphasis)

23. Likewise in the case of T.N Gadavarman Thiru Mulpad v Ashok Khot and anor [2005] 5 SCC, the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows: -“Disobedience of this Court's order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court's orders are to be followed and complied with. (own emphasis)

24. Before making a finding of contempt, it is imperative that the standard of proof required in such cases be considered. The standard of proof required in cases of contempt is higher than that acquired in an ordinary civil case. Before a finding of contempt can be made, there must a demonstration of willful and deliberate disobedience of a court order, on the part of the contemnor.

25. In Gatharia K. Mutikika – vs Baharini Farm Ltd [1985] KLR 227 it was held that-“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…… it must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject…… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.” (own emphasis)

26. In the light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to the attention of the alleged contemnor as proof that he/she had personal knowledge of said order.In Oilfield Movers Ltd –vs– Zahara Oil & Gas Limited[2020]eKLR the court stated -“It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty…..”

27. There is no doubt that the Respondent was at all times fully aware of the orders made by the court on 29th April 2021. At paragraph 5 of his Replying Affidavit the Respondent depones as follows:-“ThatI wish to state that I am aware that this Honourable court delivered a ruling dated 29th of April 2021 by the Honourable Lady Justice Mutuku as the same was explained to me by my advocate herein on record Daniel Amalemba Advocate.”

28. Thus it is perfectly clear that not only was the Respondent fully aware of the orders of the court but his Advocate had even taken the trouble to explaining said orders to him.

29. In order to find a person guilty of contempt there must be proof of willful and intentional disobedience of a court order. In Mahinderjit Singh Bitta – Vs Unionof India &others 1A No 100 of 201O the Supreme Court of India stated as follows: -“In exercise of its contempt jurisdiction the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and willful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution.(own emphasis)

30. With respect to the orders requiring the Administrator to provide full and true accounts of the estate within 60 days, the Respondent states that following further orders made by Hon Justice Onyiego, he did file Audited Accounts on 4th July 2019. That said Audited Accounts were duly served upon the counsel then on record for the Applicant Messrs Onyoni Ouni & Gachuka Advocates. That in view of service of said Accounts on the Applicants Advocate the Respondents did not produce the same after the ruling of 29th April 2021.

31. Even though the Respondent had filed and served Audited Accounts prior to the ruling of 29th April 2021 by virtue of that ruling he ought to have filed the same again. However, I cannot deem this omission to amount to wilfull disobedience of the court order. The Respondent appeared to believe that his filing of Audited Accounts prior to the Ruling amounted to sufficient compliance. The Respondent may have misinterpreted the import of the ruling but he cannot be said to have willfully disobeyed the same.

32. The second order required the Respondent to complete the Administration of the estate in compliance with the Certificate of confirmed Grant dated 19th March 2008 as well as the consent dated 28th November 2007.

33. The Respondent filed the Affidavit dated 10th August 2021 detailing all that he has done in pursuance of this order and also setting out the challenges he has faced. The Respondent explains that delay was occasioned by the family surveyor who did not prepare and file his status report on time. Further that the Respondents Advocates were unable to file any documents because their firm had not been mapped on the Judiciary e-filing platform.

34. I have carefully perused the Affidavit dated 10th August 2021. The same provides a detailed narrative of all the steps, which have been taken by the Respondent to complete the Administration of the estate. There were certain challenges and it is a fact given the vicissitudes of life things do not always go as smoothly as we may wish. I am satisfied that the Respondent has made genuine efforts towards ensuring the complete administration of the estate and where challenges did occur steps were taken to iron out those challenges.

35. The Respondent averred that he suffered psychiatric problems in 2009/2010 as a result of which he was in an out of hospital for treatment. That he only fully recovered in 2011. Ill health is an issue that cannot be controlled and delays occasioned by such ill heath are entirely excusable.

36. The Respondent also referred to time spent prosecuting/defending cases in order to recover estate land which had illegally been sold off to third parties. Again, this is a reasonable explanation of the delays in completing the Administration of the estate.

37. All in all I am satisfied that the Respondent has made reasonable and indeed commendable efforts to distribute this estate. He has not just been sitting pretty doing nothing. Certainly the Respondent cannot be said to have ‘willfully disobeyed’ the courts orders.

38. Therefore, I find no merit in this application and find no grounds upon which to cite the Respondent for contempt. Having said that I am mindful that this is a very old matter, which began in the year 1998. It desirable that this succession cause be concluded.

39. I direct that the Respondent conclude the administration of this estate within ninety (90) days hereof and ensure that each beneficiary has transferred to them their share of the estate in accordance with the mode of Distribution set out in the Certificate of Confirmed Grant dated 19th March 2019.

40. The Notice of Motion dated 21st July 2021 is dismissed in its entirety. This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 15TH DAY OF JULY, 2022. …………………………………MAUREEN A. ODEROJUDGE