[2022] KEHC 12154 (KLR)

In re Estate of Joseph William Nthiga Nyagah (Deceased) (Succession Cause E254 of 2021) [2022] KEHC 12154 (KLR) (Family) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12154 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E254 of 2021

MA Odero, J

May 6, 2022

IN THE MATTER OF THE ESTATE OF JOSEPH WILLIAM NTHIGA NYAGAH (DECEASED)

Between

Gina Din-Kariuki

1st Applicant

Natalya Din-Kariuki

2nd Applicant

Naythan Din-Kariuki

3rd Applicant

and

Norman James Munene Nyagah

1st Respondent

Jeremiah John Mwaniki Nyagah

2nd Respondent

Ruling

1. Before this court for determination is the Chamber Summons dated September 20, 2021 by which the applicants- Gina Din-Kariuki

Natalya Din-Kariuki

Naythan Din-Kariuki

seek the following orders:-“1. That this honourable court be pleased to join the applicants as interested parties in these proceedings.2. ThaT the costs of this application be borne by the Petitioner in any event.

2. The application was premised upon Order 1 Rule 10(2) of the Civil Procedure Rules 2010, Section 1A and 3A of the Civil Procedure Act, cap 21 Laws of Kenya, rules 40 and 73 of the Probate and Administration Rules 1980, article 159 of the Constitution of Kenya 2010 and all other enabling provisions of the Law and was supported by the Affidavit of even date sworn by the 1st applicant.

3. The respondent Norman James Munene Nyagah and Jeremiah John Mwaniki Nyagah both opposed the application through the Replying Affidavit dated November 1, 2021 sworn by the 2nd respondent. The application was canvassed by way of written submissions. The applicants filed the written submissions dated December 16, 2021 whilst the respondents relied upon their written submissions dated February 14, 2022.

Background 4. This succession cause relates to the estate of the late Joseph William Nthiga Nyagah (hereinafter ‘the deceased”) who died testate on December 11, 2020. The deceased was said to have left a written will dated February 19, 2013, which will is yet to be proved in a court of law.

5. The applicants seek to be enjoined as interested parties in this succession cause for the following reasons. The 1st applicant avers that prior to the demise of the deceased she was engaged in litigation with the deceased being Milimani Commercial Court Case no 4445 of 2017: Joseph Nyaga – vs Gina Din Kariuki & another. The dispute involved rent arrears in respect of the property known as Land Reference Number 209/10557/2 El Shaddai Kaputei Gardens no 2.

6. Following a decision made by the learned trial Magistrate over the question of jurisdiction, the 1st applicant filed an appeal in the Environment and Land Court being Nairobi ELC no 820/ 2019; Gina Din Kariuki & Another – vs - Joseph Nyagah. The said appeal is still pending in the ELC court.

7. The 1st applicant contends that the rent arrears claim of kshs 19,425,000 ought to be included as a liability to be paid out of the estate of the deceased. It is on this basis that the 1st applicant prays to be enjoined as an interested party in this succession cause.

8. The 2nd and 3rd applicants are named in the will left by the deceased. They seek to be enjoined in this succession cause in order to defend and/or protect their interests in the estate of the deceased. The applicants express apprehension that if not so enjoined then their interests in the estate of the deceased may not be adequately catered for.

9. As stated earlier the application was opposed. The respondents averred that the applicants have not met the threshold required to be enjoined in this succession cause. That the Grant of letters of Administration applied for in this matter is yet to be confirmed.

10. The respondents confirmed that the 1st applicant ought to substitute the defendant in ELC no 82 of 2019 with the executors of the will of the deceased. They further aver that the 2nd and 3rd applicant being adults are capable of filing suit on their own behalf. Finally, the respondents argue that this is premature and pray that the same be dismissed entirely.

Analysis and determination 11. I have carefully considered the application before this court, the Affidavit in reply as well as the written submissions filed by both parties. The only question for determination is whether the applicants have met the required threshold to merit being enjoined in this cause. Neither the Law of Succession Act Cap 16o, Laws of Kenya nor the Probate and Administration Rules contain any provisions for joinder of parties.

12. However, rule 73 of the P&A Rules grants to the probate court inherent powers to make any orders required for the interests of justice to be met.

13. Blacks Law Dictionary 10th Edition, Page 1298 defined as interested party thus:-“A party who has a recognizable stake (and therefore standing) in a matter”Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, define and Interested party as –“a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”.

14. In the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR, the court defined an interested party as follows:“…consequently, an interested party is one who has a stake in the proceedings, thought he or she was not party to the cause ab ignition. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings and champions his or her cause.”

15. Similarly, in Amm- vs Jmn [2019] eKLR Hon Lady Justice Gitari held as follows: -“An interested party is one who has a stake in proceedings, though he was not a party to the cause ab initio. He is one who will be affected by the decision of the court when it is made, either way the court should not act in vain b enjoining a party that clearly would have no interest in the subsequent proceedings”.

16. The 1st applicant claims to be a creditor of the estate. She submits that the deceased owed her an amount of kshs 19,425,000 as rent arrears. The 1st applicant has in her documents admitted that her claim for rental arrests is still under consideration in a different forum. The matter is still pending before the ELC court. As such, this claim for rental arrears having not yet crystalized cannot be said to amount to a liability against the estate of the deceased.

17. It must be remembered that this court is sitting as a probate court whose specific mandate is to oversee the distribution of the estate of the deceased to the genuine beneficiaries.

18. In the Estate of Solomon Mwangi Waweru (deceased) [2018] eKLR the court held as follows:-“12. The duty of the probate court is to oversee the transmission of the estate of the deceased to his beneficiaries. Its jurisdiction is over the net estate of the deceased being that which he was free to deal with during his lifetime and its purpose is to ascertain the assets, liabilities, if any, the beneficiaries and the mode of distribution of the estate”

19. Similarly in re estate of Henry Kithika Mwitari (deceased)// [2021] eKLR, this court stated as follows:-“It is only where one has established claim against the estate that has already crystalised that he can litigate it before a family court for the claim to be considered as a liability to the estate. This court, in my view, cannot be called upon to ascertain whether or not one has a right to an estate of the deceased where such right has not yet crystalised. The right must be shown to have crystalised before the family court can entertain it.” (own emphasis)

20. The validity of the 1st applicants claim as against the estate of the deceased is yet to be determined. She has not yet secured any judgment and/or decree from the relevant court. It is only when such a decree has been obtained that the 1st applicant will be entitled to approach the family court seeking enforcement of said Decree.

21. I therefore agree that the application by the 1st applicant for joinder is in the circumstances premature. Her claim has not met the threshold required and the application by the 1st applicant to be enjoined in this cause is denied.

22. The 2nd and 3rd applicants have through the 1st applicant also sought to be enjoined in this succession cause. The respondent have submitted that the 2nd and 3rd applicants are adults (which is not denied). As such, they are quite capable of filing suit on their own behalf. The question then arises on what basis does the 1st applicant purport to be acting on their behalf.

23. The 1st applicant submits that the 2nd and 3rd applicants who are her children have given her authority to act on their behalf. She cites order 1 rule 8 of the Civil Procedure Rules, which provides as follows: -“One person may sue or defend on behalf of all in same interest”.“Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the court otherwise orders, continued, by or against any one or more of them as of all in same representing all or as representing all except one or more of them”.

24. However order 1 rule 13 (1) and (2) of the same rules provide that the authority to plead or act for another person shall be in writing. Order 1 Rule 13 (2), provides that‘the authority shall be in writing signed by the party giving it and shall be filed in the case.” (own emphasis)

25. In this matter no written authority signed by the 2nd or 3rd applicant has been annexed to the summons. The term used in order 13 rule (2) is the mandatory ‘shall”. Therefore, without written authority, the 1st applicant cannot purport to act for the 2nd and 3rd applicants and thus their application for joinder is a non-starter.

26. Having said that it is clear that the 2nd and 3rd applicant have been named in the written will. Being beneficiaries named in the will they are parties to this cause as of right and do not require to be so enjoined. As such the application for joinder of the 2nd and 3rd applicants is superfluous.

27. Finally I find no merit in the present application. The same is dismissed in its entirety. Each party to bear its own costs.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. …………………………MAUREEN A ODEROJUDGE