[2018] KEHC 4291 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 282 OF 2005

IN THE MATTER OF THE ESTATE OF JOSEPH NJAU KAIRU (DECEASED)

RULING

1. The application I am called upon to determine is dated 1st November 2016. It principally seeks that the orders that the court made on 10th October 2016 on the application dated 6th May 2016 be set aside and that the said application, be heard afresh or there be such other directions thereon as the court may find fit. The grounds on the face of the application and in the affidavit sworn in support by Esther Wanjiku Njau are that the said application was never served on them, nor were they served with the hearing notice that led up to the making of the said orders, and therefore they were denied a fair hearing. She also states that the property the subject of the orders had been subdivided by the deceased and the subdivisions sold to third parties.

2. The respondent to the application, Peter Nyaga Kairu, has sworn an affidavit on 16th November 2016 in response to the said allegations. He avers that the application in question was served in open court on 10th May 2016 by his advocate to the advocate for the applicants herein and another party, and directions were given then that the parties then served in open court would file responses within fourteen (14) days. He concedes to the subdivisions alluded to by the applicants, but asserts that the same happened after the deceased died, and it is the legality of the subdivisions that is the subject of the civil suit. He, however, avers that one other asset the subject of the suit was still intact.

3. Directions were given on 12th July 2017 that the application of 1st November 2016 be canvassed by way of written submissions, to be filed within a stated period of time. The parties have complied and have filed detailed written submissions complete with the records that they proposed to rely on. I have read through the submissions and the decisions that the parties propose to rely on, and I have noted the arguments made therein.

4. The application seeks to set aside orders that were made herein earlier on. For me to effectively resolve the application, I will need to go back to the record on the events that led up to the making of the orders.

5. The application dated 6th May 2016 was first placed before me on 9th May 2016, under certificate of urgency. By then it had been scheduled for the hearing of another application on 10th May 2016, so I ordered that directions on its disposal be given on 10th May 2016 by the Judge before whom the matter was to be placed on 10th May 2016. The matter was listed before Muchelule J. on 10th May 2016. Three counsels appeared before the Judge that day, being Mr. Ngugi for the Objector, Mr. Kago for the Respondent and Mrs. Mwadumbo for Peter Kairu. An order was recorded by consent to the effect that Mr. Ngugi and Mr. Kago were allowed to respond to the application dated 6th May 2016, that the parties were to prepare written submissions there, and, Mr. Kago was to do submissions on an earlier application. The matter was then fixed for hearing on 20th June 2016.

6. The matter was not listed for hearing on 20th June 2016 as scheduled, and it is not clear from the record as to what might have happened. The parties were given a date for 25 July 2017, but again it was not listed. They were then given the 21st September 2017. Come 21st September 2017, the matter was listed before me, Mr. Ngugi and Mrs. Mwadumbo appeared, but not Mr. Kago. Mr. Ngugi informed me that he was not opposed to the application dated 6th May 2016. Mrs. Mwadumbo informed that the directions given by Muchelule J on 10th May 2016 had not been complied with as no replies to and submissions on the application had been filed, and the application was therefore unopposed. Upon being satisfied of the orders made by Muchelule J I allowed the said application in terms of prayer 2 thereof.

7. From what is on record, the applicants herein must have been aware of the said application. Their counsel, Mr. Kago, was party to the consent that allowed him to reply to the said application. I doubt that the advocate would have consented to reply to an application which had not yet been served. I would therefore take with a pinch of salt the submission that the applicants were totally unaware of the application, so long as their counsel had been served. .

8. On whether they were aware of the hearing fixed for 21st September 2016, I am less certain. The said date was taken at the registry on 25th July 2016 when the matter was supposed to be coming up for hearing but was apparently not listed. Those present were representatives from the offices of Mr. Ngugi and Mrs. Mwadumbo; there was no representative for Mr. Kago. The affidavit lodged in court on 22nd July 2016 in respect of service of notice for the hearing scheduled for 21st September 2016 indicates that the same was served on Mr. Ngugi and Mr. FN Kimani, who, from the record, formerly acted for Mr. Kago’s clients. It would appear that Mr. Kago was not served with the said notice. That would explain his absence from court on 21st September 2016. I have noted from the record that Mrs. Mwadumbo came on record on 9th May 2016, while Mr. Kago had come on record earlier, on 26th October 2015.

9. So what emerges is that as at 21st September 2016, Mr. Kago was aware of the application dated 6th May 2016 as he had been served on 10th May 2016, and he had consented before Muchelule J to be allowed time to respond to the same. His did not respond to the same as at 21st September 2016 when the matter came up for hearing, and, as the objector was not opposed to it, the said application was unopposed as at that date. I note that the consent of 10th May 2016 did not assign any duration within which the replies were to be filed, but then the reasonable time for which replies to interlocutory applications are to be filed is within fourteen (14) days. Fourteen days from 10th May 2016 elapsed on or about 6th June 2016.

10. It is not disputed that Mr. Kago was not served with notice of the hearing that was scheduled for 21st September 2016. So although he was aware of the application dated 6th May 2016, he was unaware of the hearing scheduled for 21st September 2016. He submits that his client was condemned unheard. The applicants herein cannot possibly be heard to complain that the application was never served on them so long as it was served on their counsel, and so long as he consented to being allowed time to respond to that application on 10th May 2016. What they can raise is the non-service of the hearing notice for 21st September 2016. However, can they be said to have had been condemned unheard merely because they had not been notified of the hearing of the application? They would be justified of so saying if they had not been served with the application. In this case, however, the application had been served, opportunity had been granted for filing of a response, but the applicants had not availed themselves of that opportunity. Their attendance would not have taken away from the fact that the application in question was at the time unopposed.

11. Regarding the subject land having been subdivided and sold to third parties, I do note that both sides conceded to pendency of a civil suit on these lands. It would be only right not to subject them to probate litigation when there is a more substantive matter where the issues relating to them can be effectively and effectually thrashed out.

12. In the end I am not persuaded that I should interfere with the orders made on 21st September 2016. The application before me is without merit. I hereby dismiss the same with no orders as to costs. Should the applicant be unhappy with the orders that I have made herein, there is liberty to challenge the same at the Court of Appeal, within twenty-eight (28) days.

DELIVERED, DATED AND SIGNED at NAIROBI THIS 27TH DAY OF JULY, 2018.

W. MUSYOKA

JUDGE