[2022] KEHC 1097 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 26 OF 1985

IN THE MATTER OF THE ESTATE OF JOSIAH MWANGI KARIUKI (DECEASED)

ROSEMARY MACHUA....................................................................................................APPLICANT

VERSUS

DORIS NYAMBURA KARIUKI..........................................................................1ST RESPONDENT

TERRY WANJIKU KARIUKI.............................................................................2ND RESPONDENT

MARK KARIUKI MWANGI..............................................................................3RD RESPONDENT

RULING

1. The deceased Josiah Mwangi Kariuki died intestate on 2nd March 1975. He left a vast estate. On 8th December 2009 Justice K.H. Rawal (as she then was) proceeded on the basis that the deceased had left three widows, each with children, and, after hearing the parties, delivered a ruling distributing the estate to the respective beneficiaries. The widows were Doris Nyambura Kariuki, Terry Wanjiku Kariuki, and Esther Mwikali Kariuki. In the ruling, the Judge noted as follows:-

“On 11th November 2008, all the counsel agreed that the three co-wives on record are accepted as widows of the deceased and that their respective children be the beneficiaries of the estate.”

2. On 22nd December 2009 Doris Nyambura Kariuki filed an application against Terry Wanjiru Kariuki and Esther Mwikali Kariuki seeking the review of the ruling on several grounds. The substance of her application was her claim that she was the only legal widow of the deceased, having been married under the African Christian Marriage and Divorce Act. That, the marriage was a monogamous one and she was not divorced. That, Terry Wanjiru Kariuki and Esther Mwikali Kariuki had subsequently cohabited with the deceased, and each got children, but that theirs was not a marriage as her marriage to the deceased was always in subsistence. Therefore, that the deceased had no capacity to marry either of them. She questioned the finding by the court that the deceased had three widows, and claimed that the consent relied on was entered in the absence of her counsel. She stated that the court had ordered that she files a further affidavit before the distribution, which she had not done because her lawyer had not informed her about it. Lastly, that the estate had been shared in a disproportionate manner in which she had lost a lot of estate to the two ladies and their children.

3. The application has neither been heard nor determined.

4. The applicant Rosemary Machua is a daughter of the deceased. She is the daughter of Doris Nyambura Kariuki. Her application is dated 24th January 2020 and was brought under Articles 40, 165(3)(d)(i), (ii)and(4) of the Constitution. She sought that the motion dated 22nd December 2009 be certified by the court as raising substantial questions of law, and be referred to the Honourable the Chief Justice for the empanelment of an uneven number of judges, being not less than three, to hear and determine the matter. The substantial questions of law as contained in ground 8 are as follows:-

“(1) If the deceased was married to the first respondent under the African Christian Marriage and Divorce Act, could he enter into any other form of marriage to the second and third respondents?

(2) Could any other person claim to be a lawful widow of the deceased other than the first respondent?

(3) Does the court have jurisdiction to convert the marital status of a deceased person from monogamous to a polygamous one and if so under what law?

(4) The deceased died in 1975. The current law of Succession came into force on 11th July 1981.

(5) Which law of succession applies to the deceased’s estate?

(6) Was the distribution of the deceased’s estate done in accordance with the law of succession applicable as at the time of the deceased’s death?

(7) Who then are the legitimate beneficiaries of the deceased’s estate?

(8) Has the distribution made by the court in its ruling of 8th December 2009 deprived the applicant of her right to property?”

5. Doris Nyambura Kariuki supported the application which Terry Wanjiru Kariuki and Mark Kariuki Mwangi opposed. Mark Kariuki Mwangi is the son of Esther Mwikali Kariuki. Terry Wanjiru Kariuki and Mark Kariuki Mwangi termed the application as ridiculous, incompetent, bad in law, frivolous and an abuse of the court process. They stated that the application was intended to delay the hearing and determination of the application dated 22nd December 2009 which has been pending for a long time. Their case was that the application did not meet the threshold set to refer this matter to the Chief Justice to empanel a bench of three judges. This was because the grounds relied on were the same ones in the application dated 22nd November 2009, and that this court had jurisdiction to hear and determine those matters. Further, that the grounds raised did not amount to substantial issues of law as the superior courts have pronounced themselves on them.

6. Rosemary Machua’s counsel filed written submissions, as did counsel for Doris Nyambura Kariuki and that of Terry Wanjiru Kariuki and Mark Kariuki Mwangi.

7. It is agreed by both sides that the jurisdiction to ask the chief Justice to empanel a bench of uneven number of judges is contained in Article 165(3)and(4) of the Constitution which provides as follows:-

“(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

(4) Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.”

8. It is clear from the provisions that the High Court comprising one judge has the jurisdiction under Article 165(3)(d) to hear any question respecting the interpretation of the Constitution, including the determination of:-

“(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191. ”

9. For Rosemary Machua to want the court to ask the Chief Justice to empanel a bench of uneven number of judges, being not less than three, to deal with the application dated 22nd December 2009 by Doris Nyambura Kariuki, which essentially sought the review of the court’s ruling delivered on 5th December 2009 on the distribution of the estate of the deceased, she has to demonstrate that the application raises substantial questions of law on whether Doris Nyambura Kariuki’s right or fundamental freedom in the Bill of Rights was denied, violated, infringed or threatened; or that the application involved a question respecting the interpretation of the Constitution regarding –

(a) the question whether any law is inconsistent with or in contravention of the Constitution;

(b) the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution;

(c) any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(d) a question relating to conflict of laws under Article 191 (Wycliffe Ambetsa Oparanya & 2 Others –v- D.P.P. & Another [2016]. Harrison Kinyanjui –v- A.G. & Another [2012]eKLR).

10. There is no definition of what constitutes a “substantial question of law”. The court has to consider the peculiar facts of the case and determine whether the issue raised is substantial enough to warrant reference to the Chief Justice to empanel an uneven number of judges, not being less than three, to determine the matter (Community Advocacy Awareness Trust & Others –v- the Attorney General & Others, High Court Petition No. 243 of 2011).

11. In Chunilal V. Mehta –v- Century Spinning & Manufacturing Co., Air 1962 SC 1314, it was held that –

“A substantial question of law is one which is of general public importance or which directly and substantially affects the rights of the parties and which has not been finally settled by the Supreme Court, the Privy Council or the Federal Court or which is not free from difficulty or which calls for discussion of alternative views. If the question is settled by the Highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be substantial.”

12. In Santosh Hazari –v- Purushottam Tiwari (2001) 3 SCC 179, it was held that: -

“A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity to avoiding prolongation in the life of any case.”

13. These Indian authorities have been accepted in many Kenyan decisions as being good law in determining whether a matter raises a substantial question of law.

14. It is material to point out that the cause of the estate of Josiah Mwangi Kariuki was an ordinary case of identifying the beneficiaries of the estate, ascertaining the assets and liabilities of the estate and distributing the net estate of the deceased to the beneficiaries. The dispute did not involve any constitutional question. There was no claim that any constitutional right or fundamental freedom had been denied, violated, infringed or threatened. There was no claim that any statutory provision in question was inconsistent or was in contravention of the Constitution. It did not involve anything relating to the constitutional relationship between levels of government, and did not deal with conflict of laws under Article 191. At least, the pleadings, the basis of which the judge decided the cause, did not raise any of these issues.

15. The law applicable in a succession dispute is the Law of Succession Act (Cap 160), and the distribution was based on it. The complaint by Doris Nyambura Kariuki in the application for review was that the court relied on a consent recorded by counsel for the parties in which they agreed that her, Terry Wanjiru Kariuki and Esther Mwikali Kariuki were widows of the deceased and that their children were children of the deceased and therefore beneficiaries of his estate. Her case was that she married the deceased under the African Christian Marriage and Divorce Act, which was a statutory marriage, and that the marriage had not been dissolved when he related with Terry Wanjiru Kariuki and Esther Mwikali Kariuki. Therefore, the two relationships were each void, and the two were, consequently not the widows and/or beneficiaries of the estate of the deceased. The court, in declaring them beneficiaries, had prejudiced her interest in the deceased’s estate. Lastly, she complained that the distribution of the estate had been disproportionate to her disadvantage.

16. Rosemary Wachua argued that if the deceased was married under the statute, he could not enter any other form of marriage; that this was a substantial question of law that had to be determined. It was further argued that, given the way the estate was distributed, the rights of her mother to land under Article 40 of the Constitution had been violated. The other issue related to whether the provisions of the Law of Succession Act applied to the estate, given when the deceased died and when the Act came into force.

17. It is not for this court at this stage to discuss the merits of the application for review dated 22nd December 2009 by Doris Nyambura Kariuki. It will suffice to point out that under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, an application for review is made to the court that passed the decree or made the order in question. The court that gave the ruling subject of the review was presided over by Justice K.H. Rawal (as she then was). When she left the Family Division of the High Court at Milimani the application fell to be dealt with by any judge in the Division.

18. Secondly, the ruling substantially determined the dispute, save for review or appeal. The pleadings that had been filed by the parties did not bring the dispute, or the issues therein, within the purview of Article 165(3) and (4) of the Constitution.

19. Thirdly, the law relating to when a consent order can be reviewed and/or set aside is clear and settled.

20. Lastly, Rosemary Machua and Doris Nyambura Kariuki are questioning the court’s distribution of the estate of the deceased. They will have to demonstrate that that is one of the questions that an application for review can deal with.

21. In conclusion, after considering the rival affidavits and submissions, I find that Rosemary Wachua has not demonstrated to the satisfaction of the court that the application dated 22nd December 2009 by Doris Nyambura Kariuki raises substantial questions of law that should be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice. I therefore decline to certify the matter.

22. I ask that costs be paid by Rosemary Machua.

DATED and SIGNED this..................................................................day of MARCH 2022

A.O. MUCHELULE

JUDGE

DATED and DELIVERED electronically at NAIROBI this 28TH day of MARCH 2022

A.O. MUCHELULE

JUDGE