[2023] KEHC 19975 (KLR)

In re Estate of Juliet Wanjiku Githegi (Deceased) (Succession Cause 1303 of 2018) [2023] KEHC 19975 (KLR) (Family) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19975 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1303 of 2018

PM Nyaundi, J

June 30, 2023

IN THE MATTER OF THE ESTATE OF JULIET WANJIKU GITHEGI (DECEASED)

Between

David Ngaruiya Githegi

1st Applicant

Wallace Waweru Githegi

2nd Applicant

Juxon Shako Githegi

3rd Applicant

and

Grace Njeri Koinange

1st Respondent

Lucy Wairimu Kimani

2nd Respondent

Ruling

1. The applicants being aggrieved by the ruling of the Hon Magare J delivered on January 25, 2023 have filed the notice of motion dated February 16, 2023 seeking the review of the said orders. The application is presented under sections 1, 1A, 1B & 80 of the Civil Procedure Act cap 21 Laws of Kenya, order 45 rule 1 and order 51 of the Civil Procedure Rules 2010

2. The application is opposed by the respondents who have filed a notice of preliminary objection dated February 27, 2023.

3. The parties consented to canvassing the preliminary objection by written submissions. The applicants submissions are dated June 13, 2023. While those of the respondent are dated May 12, 2023.

Respondent’s Submissions 4. The respondent frames the following issues for determination-a.Whether the application dated February 16, 2023 discloses any grounds for review of judgmentb.Who should bear the costs of the application

5. It is the respondent’s submission that the application does not conform with the prerequisites for grant of review as required by section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules. The respondent relies on the decision in Re Estate of Kimachia Gituanja 9 deceased) [2018] eKLR and Re Estate of Joseph Maguru Kanyuguti(deceased) [2021] eKLR

Applicants Submissions 6. The applicants define the following issues for determinationa.Whether the applicants should be granted a review of the court’s order issued on the January 25, 2023?b.Whether the applicant should be granted costs?

7. The applicants aver that the court has power to review as donated by order 45 rule 1 and section 80 of the Civil Procedure Act and cites the following decisions; Naisibwa Wakenya Moses v University of Nairobi & Anor [2019] eKLR and Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243.

Analysis And Determination 8. The impugned ruling of the Hon Magare J dismissed the application dated November 21, 2022 presented by the respondents in which they sought to rectify the grant and add the 1st applicant herein as an administrator. I will set out the entire ruling of the courtCourt: The application dated November 21, 2022 is hereby dismissed for lack of merit. The application dated August 2, 2022(sic). Courts do not exist to assuage egos. The grandson proposed to be added does not add value to the administration. The existing administrators to proceed and conclude the administration. The file is closed.

9. The applicant is aggrieved by this ruling as the parties did record a consent and the applicants on the strength of that consent withdrew their summons for revocation of grant dated August 2, 2022.

10. In response the respondents have raised a preliminary objection. Having reviewed the rival pleadings and submissions I discern the issues for determination to bei.Whether the preliminary objection raised meets the legal thresholdii.Who should meet the costs of this application

11. On the first issue, the threshold for a properly raised preliminary objection was spelt out in the case of Mukhisa Biscuit Manufacturing Co Ltd v Westend Distributors Ltd 1969 EA 696, which is that“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”1. In Independent Electoral and Boundaries Commission v Jane Cheperenger and others(2015) eKLR, the Supreme Court stated;[21]…The true preliminary objection serves two purposes of merit: firstly it serves as a shield for the originator of the objection- against the profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially and on the merits.

12. Guided by the above cited authorities I find that the preliminary objection as framed does not meet the legal threshold as it is premised on whether or not the provisions of section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules have been properly invoked. This is a matter that should be canvassed and determined on merit.

13. For this reason, I am inclined to dismiss the preliminary objection. Even as I do this I am mindful of the fact that this matter has been pending in court since 2018. The deceased died on February 8, 2014. The respondents vide application dated November 22, 2022 moved the court to rectify the grant so as to include the 1st applicant as an administrator. On the basis of this application the applicants withdrew their summons for revocation for grant.

14. This court is required by virtue of article 159 to be guided, inter alia, by the following principles in exercising judicial authority.i.Justice is not delayedii.Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)iii.Justice shall be administered without undue regard to procedural technicalities; andiv.The purposes and principles of this constitution shall be protected and promoted.

15. Motivated by the conviction that it is in the interests of the parties herein that the matter be dispensed off expeditiously I will proceed to allow the application dated February 16, 2023 as it is evident that the court erred in failing to record the consent of the parties and closing the file while at the same time directing that the respondents proceed to administer the estate. As is evident in its ruling delivered on January 25, 2023, the court did not consider that the parties were in agreement with regards to the rectification of the grant and wanted the court to adopt their consent as an order of the court.

16. I am fortified by the decision of the Supreme Court in Geoffrey M. Asanyo & 3 others v Attorney General [2018] eKLR. In that case the appellants submitted that despite filing a consent which would have settled the matter in line with article 159(2) on the constitutional principle of promotion of alternative forms of dispute resolution, the Court of Appeal disregarded it. The Supreme Court pronounced as hereunder[90]In the above context, we repeat that article 159 of the Constitution is the foundation of the exercise of judicial authority as donated by the people. This article outlines principles that guide any person/body who or which exercises that delegated judicial authority. alternative dispute resolution is one such principle as provided by article 159(2)(c). The High Court, Mativo J inCouncil of County Governors v Lake Basin Development Authority & 6 others petition No 280 of 2017; [2017] eKLR stated as follows, and we agree, regarding alternative dispute resolution:44. I have no doubt that alternative dispute resolution processes are complementary to the judicial process and by virtue of article 159(2)(c) of the Constitution, the court is obligated to promote these modes of alternative dispute resolution. A court is entitled to either stay the proceedings until such a time as the alternative remedy has been pursued or bring an end to the proceedings before the court and leave the parties to purse the alternative remedy. I have no doubt that the place of alternative dispute resolution is respected by the courts and this court is no exception.”(96)The above finding therefore fortifies our position (in a persuasive context), that appellate courts can also adopt duly entered into consents between parties and it therefore emerges that there should be no rule of procedure that precludes a court of law from allowing a withdrawal of a matter (as correctly stated by the Court of Appeal) or recording a consent between parties before delivery of Judgment and making the Judgment moot. It is also trite that rules of court are handmaidens of the court in its delivery of justice. The epitome of justice between parties before a court of law is when parties finally, voluntarily, come to an amicable settlement of the dispute between them. The court only comes in as an impartial arbiter where parties have failed to agree amongst themselves. It is the parties that go to court seeking it to arbitrate the matter between them and once the court is so invited, it should not close the door for parties to continue negotiating to reach an amicable settlement. Parties must remain at liberty to withdraw or consent to terms of settlement of the matter before the court, as was correctly stated by the Supreme Court of Nigeria and which position settles well with our constitutional imperatives.[101]Consequently, it is our finding that the Court of Appeal should have paid due regard to the principle in article 159 (2) (e) of the Constitution while interpreting its rules. It should in that case have adopted the consent as filed in court and thereafter if need be, it could have invoked its rules, particularly rule 96 and marked the appeal as withdrawn.[102]In so holding we hasten to add that it is not lost to this court that judicial time and resources are scarce and precious. indeed, a lot of judicial work and industry goes into the preparation of a judgment. However, the fact that such a judgment in which a court has invested heavily in, is ready for delivery, cannot be a reason of denying litigants an opportunity to explore alternative dispute resolution under article 159 of the Constitution. As frustrating as that may be, it is the price that we judges, occasionally, have to pay in our pursuit of safeguarding access to justice and the rule of law. With tremendous respect to the learned judges of the Court of Appeal therefore, we disagree with their holding that “once an appeal is heard and judgment reserved, parties lose their chance to withdraw the matter as the court becomes fully seized of the matter”. A party/litigant before the court should not at any time feel that he is no longer in-charge of his matter even as the court ultimately determines such a matter. (emphasis supplied)

17. In issue in this matter is how the estate ought to be distributed. This can only be determined when the court decides on the summons for the confirmation of the grant dated February 27, 2023. Accordingly, I make the following ordersa.The application dated February 16, 2023 is allowedb.The consent recorded by the parties on January 25, 2023 is adopted as an order of the courtc.The application dated November 22, 2022 is allowed. The grant is rectified to include David Ngaruiya Githegi as a co administrator with the 1st and 2nd respondentd.The applicants herein to file and serve affidavit of protest within 14 days in response to the summons for confirmation dated February 27, 2023. The respondents/ administrators are granted leave to file further affidavit if deemed necessary within 7 days of service of the affidavit of protest.e.The summons for confirmation of grant dated February 27, 2023 to proceed for hearing by way of viva voce evidencef.The matter to be mentioned on the July 26, 2023 to confirm compliance and take further directionsg.Each party to bear their own costsIt is so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 30th DAY OF JUNE, 2023. P M NYAUNDIHIGH COURT JUDGEIn the presence of:Court Assistant Karani