[2022] KEHC 15479 (KLR)

In re Estate of Joshua Mwania Mutisya (Deceased) (Succession Appeal E005 of 2021) [2022] KEHC 15479 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15479 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Appeal E005 of 2021

GV Odunga, J

October 5, 2022

IN THE MATTER OF THE ESTATE OF JOSHUA MWANIA MUTISYA (DECEASED)

Between

Crifton Mutisya Matheka

1st Applicant

Rodah Ndunge Mwania

2nd Applicant

and

Karen Nyambura Heho

1st Respondent

Flora Wanjiru Heho

2nd Respondent

(Being an Appeal from the whole of the ruling and Orders delivered and issued by the Honourable B. Kasavuli Principal Magistrate on the 6th day of December, 2021 at Mavoko, in Magistrate’s Court Succession Cause No. E 103/2021)

Judgment

1. On 25th October, 2021, Karen Nyambura and Flora Wanjiru Heho, the Respondents herein, in their capacities as the wife and mother in law to the deceased respectively, petitioned the Chief Magistrate’s Court in Machakos vide Succession Cause No. E103 of 2021 for the grant of letters of Administration intestate for the Estate of Joshua Mwania Mutisya, the Deceased.

2. On 1st December, 2021, the Appellants, Clifton Mutisya Matheka and Rodah Ndunge Mwania, claiming to be the father and mother to the deceased, objected to the making of the said grant.

3. By Summons dated 29th November, 2021 filed on 6th December, 2021, one of the Respondents herein, Karen Nayambura Heho, sought orders that pending the hearing and determination of the said cause, an order for collection and preservation be issued against Crifton Mutisya Matheka in respect of motor vehicle reg. no. KCK 924E Toyota Axio. She further sought that the OCS, Matetani Police Station do ensure compliance with said order. On 6th December, 2021, that application was placed before Hon. Kasavuli, PM who granted the said summons in terms of the prayers set out above. The Court further warned the parties from intermeddling with the estate of the deceased.

4. By a further Notice of Motion dated 22nd December, 2021 the Respondent sought to have the orders which she had obtained earlier on to be enforced by the OCS Kangundo Police Station instead of the OCS, Matetani Police Station which application was granted once more ex parte on 24th December, 2021.

5. Aggrieved by the said decisions, the Appellant herein has preferred this appeal. In this appeal it is contended that pursuant to section 79 of the Law of Succession Act, the Collection and preservation of the properties of a deceased person can only be vested to the personal representative(s) by an instrument so granted by a court of competent jurisdiction and through a petition for grant of letters of administration limited or otherwise. It was submitted that this provision was disregarded by the Trial Magistrate as he went on to allow the Application ex-parte and knowing very well that there was no grant of letters of administration in favour of the Respondents herein at the time of issuing the order in question.

6. It was further submitted that it is clear that the Appellants were never served with the Application which culminated in the orders appealed against herein yet the trial magistrate proceeded to allow the Application without directing that the Application be served for an inter partes hearing. Accordingly, the action denied the Appellants the right to a fair hearing contrary to constitutional provisions in Article 25 (C) and Article 50 of the Constitution of Kenya as well as the principles of natural justice. According to the Appellant notwithstanding the fact that they had objected to the issuance of the Grant to the petitioners herein, the court proceeded to issue the orders summarily including prayers 2 and 3 of the Application which were substantive prayers in nature. This, it was submitted, denied the Appellants the opportunity to participate in an Application in which they were mentioned as Respondents. In this regard the Appellants relied on the case of National Land Commission & 2 others Ex parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West[2018] eKLR.

7. It was submitted that the trial magistrate erred in not directing that the Application be served for hearing on the merits which amounted to a denial of the Appellants’ right to a fair hearing.

8. It was further submitted that if the trial court was indeed mindful of doing justice as between the Parties, it ought to have taken judicial fact that if the Petition for grant of letters of administration was Objected to, then the most obvious conclusion by a reasonable judicial officer in the circumstances would have been that the estate was a contentious one hence the more need to direct that the Application before court be heard on merits.

9. The Appellants further submitted that it is a cardinal principle of law that a decision maker must give reasons for the decision he/she arrives at. In the current instance, the trial magistrate never bothered to record the reasons for making the decision he made. Reliance for this submission was placed on the case of Apollo Omusula Manyasi v Kariuki Kiragu [2022] eKLR.

10. It was the Appellant’s case that the decision in question was un-procedural, illegal and cannot stand scrutiny.

11. It was further submitted that since under Section 47 of the Law of Succession Act, the High Court is granted the power to issue any orders as may be expedient and being cognizant of the fact this Court has unlimited jurisdiction pursuant to Article 165 of the Constitution of Kenya , this Court should invoke its jurisdiction under Section 47 above and proceed to issue a grant of letters of administration in this matter, whether limited in scope or otherwise in order to aid the preservation of the estate herein to the Appellants herein. This according to the Appellants is due to the fact that the Appellants herein are the biological parents of the deceased who died without a known spouse or child hence under section 39 of the Law of Succession Act, have the precedence/priority to petition for grant for administration of the estate of their beloved son.

12. As costs follow the event, the Court was urged to award costs to the Appellants.

13. I have perused the Court file and I have been unable to trace any hardcopies of the submissions made on behalf of the Respondents on the main appeal. Apart from that this Court directed the parties to furnish it with soft copies of their submissions in word format. The 1st Respondent only furnished the soft copies of the submissions in respect of the interlocutory application.

Determination 14. I have considered the issues raised in this appeal. It is clear from the record of the proceedings that the learned trial magistrate issued orders which were final in so far as the preservation of the estate was concerned ex parte. While the Court could properly issue orders to preserve the estate, where there was an objection to the issuance of the grant on record, the Court could only issue such orders on a temporary basis pending inter partes hearing. To issue such orders pending the hearing of the cause at an ex parte stage clearly amounted to a violation of the rules of natural justice.

15. On the issue of the right to hearing, it was therefore held in Onyango Oloo v Attorney General [1986-1989] EA 456:“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...Denial of the right to be heard renders any decision made null and void ab initio.”

16. This was a restatement of Lord Wright’s decision in General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval inR v Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 that:“If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.”

17. In Ridge v Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows:“Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void.”

18. I associate myself with the position in Msagha v Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553 where it was held as follows:“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialisation of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.”

19. In Egal Mohamed Osman v Inspector General of Police & 3 Others[2015] eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another v Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, the Ugandan Supreme Court stated as follows regarding the rules of natural justice:“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”

20. In Judicial Service Commission v Gladys Boss Shollei & Another [2014] eKLR:“Apart from the need for independence and impartiality, the right to a fair hearing under Article 50(1) of the Constitution encompasses several aspects. These include, the individual being informed of the case against her/him; the individual being given an opportunity to present her/his side of the story or challenge the case against her/him; and the individual having the benefit of a public hearing before a court or other independent and impartial body.”

21. From the above discourse, it must now be clear that the learned trial magistrate erred in the manner in which the decision in question was arrived at. At that ex parte stage, the order ought to have been granted pending inter partes hearing and not pending the hearing of the cause itself.

22. In the premises, I allow this appeal, set aside the orders issued on 6th December, 2021 as well as the subsequent orders issued on 24th December, 2021 and direct that the matter be listed before the trial court for inter partes hearing. As the parties are clearly related, there will be no order as to costs.

23. It is so ordered.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5THDAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: