[2023] KEHC 26265 (KLR)

In re Estate of Kiberenge Mutoro Lusweti (Deceased) (Succession Appeal E002 of 2022) [2023] KEHC 26265 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26265 (KLR)

Republic of Kenya

In the High Court at Bungoma

Succession Appeal E002 of 2022

REA Ougo, J

November 9, 2023

IN THE MATTER OF THE ESTATE OF KIBERENGE MUTORO LUSWETI (DECEASED)

Between

John Sikuku Mutoro

Appellant

and

John Mwangale Kiberenge

1st Respondent

Wafula Kiberenge Mutoro

2nd Respondent

Mary Kahindi Kibrenge

3rd Respondent

M/S Makokha Wattangah & Luvali Associates

4th Respondent

(An Appeal from the Ruling of Hon. C.A.S Mutai SPM delivered in Bungoma CMCC Succession Cause No. 340 of 2017 on the 10th December 2021)

Judgment

1. The subject of this appeal is the ruling delivered by Hon. C.A.S Mutai in Succession Cause no. 340 of 2017 which was delivered on the 10th December 2021. In the said Ruling the trial court dismissed the appellant’s application dated the 30th July 2021.

2. The appellant filed his memorandum of appeal on the 22nd of march 2022. His 7 grounds of appeal are as follows;i.That the learned Magistrate erred in law and fact when he failed to adequately analyze and evaluate the evidence on the record submitted and presented and further misadvised himself to rely on wrong principals when he allowed the respondents to reply on findings that it had merits.ii.That the learned magistrate erred in law and fact when he held that the firm of Makokha Wattang’a & Luyali Associates was properly on record.iii.That the learned magistrate erred in law and fact when he held that the fourth respondent, the firm of Makokha Wattang’a & Luyali Advocates had been enjoined as the fourth respondent without leave of the court.iv.That the learned Magistrate erred in law and fact in granting the respondent costs of the application when he failed to consider that this are succession proceedings touching on a deeply failed and divided polygamous family by condemning him as an applicant.v.That the learned magistrate erred in law and fact in holding that all the respondents be paid the cost of the application without specifying the second and the third respondents never came on record or gave written express instructions authorizing the first and the fourth respondents to represent their interests in this matter.vi.That the learned magistrate erred in fact and law when he deliberately ignored and/or technically avoided considering the presence of succession cause 43 of 2015 in the High Court touching on the same deceased person with two active orders in place issued on 14th March 2017 and 27th November 2017vii.That the appeal herein be allowed and the ruling of the subordinate court be stayed and set aside until the appeal is heard and determined.viii.That the court proceedings in the Cause matter 340 of 2017 be stayed and set aside pending consolidation with succession cause matter 43 of 2015 in the High Court to facilitate expeditious disposal of the succession matter.ix.That the cost of the application be in cause.

3. As a first appellate court, this court’s role is to re-evaluate the evidence afresh and make my conclusions, this duty was well stated in Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123

4. The appellant filed a Notice of Motion before the trial court dated the 30th of July 2021. The application was brought under sections 1, 1A, 3, 3A, 63 of the Civil Procedure Act, Order 9 Rule 6 and 7 of the Civil Procedure Act Cap 21 Rev 2020, Article 162, Section 22 of the Schedule of the Constitution. He sought the following orders;i.That the firm of M/s Makokha Wattangah & Luyali Associates be deemed to be improperly on record for the respondents.ii.That the entire court proceedings in the cause in matter 340 of 2017 be stayed and set aside pending the hearing and determination of the Succession Cause matter in the High Court succession cause no. 43 of 2015. iii.That costs of the application be borne by the advocates.

5. In his supporting affidavit in support of the said application he deponed that he was appointed to represent the 2nd house of Mama Diana Namsabu Kiberenge vide a court order issued on the 15th December 2016 by Justice Aroni Abida (as she then was). The firm of Makokha Wattangah & Luyali Associates has never filed and served upon any consent notice of appointment as advocates of the 1st, 2nd, and 3rd respondents. No notice of appointment has been served on him endorsed by the respondents giving them authority to act for them as their advocates in the cause. The family has never met and discussed the issue of choosing an advocate to come on record. The rest of the affidavit discussed issues concerning the estate of the deceased.

6. The application was opposed. John Mwangale Kiberenge filed a replying affidavit and deponed the following; he gives a background of the succession cause and depones that he instructed the firm of Makokha Wattangah & Luyali Associates to act for all of them and that if the appellant was not served with a Notice of Appointment as alleged then the technicality cannot be the reason to stop the hearing and setting aside the proceedings which has taken place before the court. That it is not true that the proceedings and the petition were erroneously commenced as they were directed to file the main succession cause by the High Court during the hearing of the High Court in Miscellaneous Application No. 43 of 2015 which had been commenced by the objector’s mother.

7. In ruling dated the 10th December 2021the trial Magistrate stated as follows; ‘“The firm of Makokha Wattanga and Luyali Associate has herein enjoined as the 4th respondent on the application without the leave of the court and on the face of the application renders the application defective and the firm of Makokha Wattanga and Luyali Associates are properly on record as upon being instructed by the petitioners. They initiated proceedings by filing succession. The petitioners did not file succession to enable the respondent to file notice of appointment of the advocate. Succession claim cap 160 has no provision whether the advocate file succession cause to file with notice of appointment. And whether there was succession cause in the High Court. It was the counter claim of Mr. Wattangah. The said Succession Cause No. 43 of 2015 was a limited grant and not full succession proceedings.In this matter I agree with the advocate for the respondent Mr. Simuyu Wattanga that the petitioner did not file succession to enable them to file a notice of appointment.The application herein is also bad in law as the firm of Makokha Wattanga Luyali Associate has been enjoined as the 4th Respondent in the application renders this application without leave of the court as on the face of the application defection. There is nothing in a form of an annexation or otherwise to show that Succession Cause no. 43 of 2015 was not a limited grant. In view of this foregoing the objection dated the 30th July 2021 shall be struck out with costs”

8. Parties canvassed the appeal by way of written submissions. I have considered the said submission. The appellant submissions are as follow; the firm of Makokha, Wattangah & Luyali who are on record could not represent the respondents without the express authority of the 2nd and 3rd respondents and consent, the said firm cannot purport to represent their interests. The appellant relied on Order 9 Rules 1, 7 & 10. It was further argued that the issue was whether the defendant’s counsel was properly on record to file documents on behalf of the respondents/ or himself without filing a notice and memorandum of appearance. The appellant called to aid the following cases; Lalji Bhimji Shangani Builders & Contractor vs City Council of Nairobi (2012) eKLR and Monica Moraa vs Kenindia Assurance Co. Ltd (2010) eKLR., Eliud Wanjau Muriethi t/a The Job Drillers vs Geoffrey Kilosa Mulwa (2021) eKLR, Onuila Enterprise Ltd vs Samaria (1986) KLR 651 and Nicholas Kiptoo Arap Korir Salat vs Independence Electoral and Boundaries Commission & 6 Others 2013 eKLR. The appellant submitted further that the succession of the deceased’s estate Kiberenge Mutoro Lusweti first proceeded in the High Court in 2015 in file no. succession cause no. 43 of 2015 vide an application for a limited grant of letters of administration by one of the widows Dinah Namsambu Kiberenge. The application was heard by Justice Aroni and orders granted to file a full grant on the same file but the 1st, 2nd and 3rd respondents secretly moved to the lower court without the knowledge of the other family members and erroneously filled another succession cause no. 340 of 2017 and obtained a grant issued to them on the 18th September 2017 which was revoked on 27th August 2020 and a fresh one was issued. That High Court Succession Cause no. 43 of 2015 was closed after Justice Kemei ordered that the court proceedings and the relevant orders be filed in the lower court in Succession Cause no. 340 of 2017 on the 27th May 2022 when they appeared before him. That the orders sought should be granted as the ruling of 10th December 2021 was too harsh and should be vacated.

9. The respondent submitted as follows; File no. 43 of 2015 was closed. The firm of Makokha, Wattangah & Luyali was properly on record upon being instructed by the petitioners and they initiated succession proceedings by filing succession cause no. 340 of 2017 the subject matter herein. That the appellant has been participating in the said proceedings in succession cause no. 340 of 2017. That the appellant by consent was enjoined as a co-administrator and did not raise any issue. The appellant later differed with the other administrators and started objecting to the mode of distribution and filed an application and the same was compromised by a consent recorded on 28/7/2019. The issue of representation by the appellant was an afterthought when he raised the same in the year 2021 when he filed the application dated 30/7/2021. That each person has a right to representation and if the appellant felt so he could have sought time to hire an advocate. That the firm of Makokha, Wattangah & Luyali Associates filed the succession cause no. 340 of 2017 thus representing the estate of Kiberenge Mutoro Lusweti, the firm is not a party to the proceedings but just offering representation. That if the appellant wants to enjoin the firm to the proceedings he ought to seek the leave of the court and has to satisfy the court what interest the firm had in the deceased’s estate. That the other petitioners had no issue. The appellant is not being sincere, he does not want the succession to be concluded as his only beneficiary who is ever complaining. That the appeal be dismissed.

10. I have considered the proceedings of the lower court, the grounds of appeal, the rival submissions, and the law as cited by the parties. The only issue for my consideration in my view is whether the firm of Makokha, Wattanga & Luyali are properly on record in Succession Cause No. 340 of 2017. From the submission, it’s not in dispute that the said firm filed the petition in succession cause no. 340 of 2017. Does the Law of Succession Cap 160 require an advocate who has filed a petition to file a notice of appointment? I find that there is no such requirement under the Law of Succession, Cap 160. The firm of Makokha Wattangah and Luyali filed the petition as advocates of the petitioner. Once the pleadings indicate that they have drawn and filed the petition, that in my view, is sufficient to indicate that they have been duly appointed by the petitioners. Any party who does not wish to be represented by the said firm is at liberty to instruct another advocate, who will file a notice of appointment.

11. Further the appellant relied on the provisions of Order 9 Rules (7) & (10). Order 9 Rules (7) provides as follows;“Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications”Rule (10)“An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”

12. The firm of Makokha, Wattangah and Luyali was not taking over the matter from another firm, as was in the cases referred to by the appellant. The said cases were civil suits where judgment had been entered and the parties were desirous of changing their advocate. The trial magistrate has the discretion to award costs I find no error in awarding costs against the appellant. I find no merit in the appeal and dismiss it with costs.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 9THNOVEMBER 2023. R.E. OUGOJUDGEIn the presence of:John Sikuku Mutoro/Appellant in personRespondents – AbsentWilkister - C/A