[2019] KEHC 5669 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

PROBATE & ADMINISTRATION CAUSE NO. 310 OF 1997

IN THE MATTER OF THE ESTATE OF KIPKEINO ARAP BOIT (DECEASED)

EGLA JERONO............................RESPONDENT

VERSUS

DAVID MAIYO...........................1ST APPLICANT

CHRISTINE JEPTARUS..........2ND APPLICANT

ISAAC KIPRONO ARUSEI.....3RD APPLICANT

RULING

[1]Before the Court for ruling is the summons dated 21 April 2017. It was filed herein under Rules 49, 59 and 63 of the Probate and Administration Rules, by the three Applicants, David Maiyo, Christine JeptarusandIsaac Maiyo for orders that:

[a] Spent

[b] The orders made herein on 7 February 2017 be set aside, reviewed and varied; and that the application dated 10 October 2016 be fixed for hearing inter partes;

[c] That leave be granted to the Applicants to file a response to the aforesaid application within such time that the Court may deem fit and expedient;

[d] That there be a temporary stay of execution of the orders of the court made on 7 February 2017or interferences whatsoever at the suit parcels; namely Nandi/Ndalat/360 and Nandi/Ndalat/320 pending the hearing and determination of this application inter partes;

[e] Costs of the application be provided for.

[2] The application was premised on the grounds that the Applicants were not served with the application dated 10 October 2016, which was the subject of the impugned orders; and that the matter therefore proceeded without their participation due to no fault on their part. It was further the Applicants’ contention that the orders issued on the 7 February 2017 are prejudicial to them and other dependants and beneficiaries of the late Kipkeino Arap Boit and the late Silvester Kipchirchir Keino.

[3] In the Supporting Affidavit sworn by David Maiyo, the 1st Applicant, it was averred on behalf of the Applicants that they learnt with shock and dismay that the Respondent, Egla Cherono, had gone ahead and obtained the orders in question without their knowledge or participation, as none of them had been served with the application. The 1st Applicant averred that they only learnt of the proceedings through village rumours attributed to the Respondent, about their impending eviction; whereupon they instructed their Advocate herein to ascertain the status of the matter; and that upon being informed that the orders had indeed been given, they instructed her to file the instant application.

[4] The 1st Applicant reiterated their common position that the order of 7 February 2017 is prejudicial to their interests as it has the effect of summarily distributing the estate of their deceased father, Silvester Kipchirchir Keino, without their knowledge or participation. They further complained that the mode of distribution adopted at the instance of the Respondent is not only skewed in favour of the Respondent, but is also unfair to the 2nd House, to which they belong. In particular, it was averred that it was unfair for the Respondent, who had already benefited from the estate of their grandfather, to be given half-share of the estate of their father without taking into account that initial distribution. The Applicants accordingly prayed that their application be allowed so that the application dated 10 October 2016 can be heard inter partes for a determination on the merits.

[5] The Respondent, Egla Cherono, opposed the application. She relied on her Replying Affidavit, sworn on 18 July 2018. She confirmed that, by a Judgment delivered herein on 1 April 2008 by Hon. Ibrahim, J., the estate of their deceased grandfather, Kipkeino Arap Boit, was to be distributed equally to the two houses comprising his beneficiaries. That since their father, Silvester Kipchirchir Keino, had predeceased their grandfather, the two houses comprising the dependants of the late Silvester Kipchirchir Keino, in turn opted to distribute his portion of their grandfather’s estate in the same Succession Cause, as it was not possible for a separate petition to be instituted without the requisite title documents; hence the application dated 10 October 2015.

[6]According to the Respondent, the application dated 10 October 2015 was duly served on the Applicants; and that the Applicants duly attended court when it came up for hearing on 15 February 2016 before Hon. Kimondo, J., and were granted time to file their response; but that they did not file any response. According to her, the Applicants were given an opportunity to participate in the proceedings but opted not to; and therefore, that they slept on their rights and have no valid cause for complaint. She posited that the Applicants have only filed the instant application out of greed, owing to the fact that she is the only heir in the 1st House; and the realization that they may have sold more land than is due to them from their late father’s estate. She thus urged for the dismissal of the application as no prejudice will be suffered by the Applicants who are her co-administrators.

[7] The application was urged by way of written submissions, pursuant to the Court’s directions dated 29 October 2018. In their written submissions filed herein on 25 February 2019, the Applicants rehashed their application, the background thereto, the brief facts in support as well as the response thereto by the Respondent. Counsel pointed out that in addition to the fact that the matter proceeded ex partewithout the participation of the Applicants, there is an error on the record in that the Order of 7 February 2017 mistakenly mentioned Parcel No. Nandi/Ndalat/320 instead of 420; and therefore, that it is incapable of execution in its current form.

[8] Counsel also drew the attention of the Court to the order by Hon. Ibrahim, J. that a separate petition be filed in respect of the estate of Silvester Kipchirchir Keino; which order was ignored by the Respondent when she filed the application dated 10 October 2015. Hence, in her view, the orders of 7 February 2017 were not only irregularly obtained by the Respondent, but were also obtained in disregard of the Court’s Judgment herein and should, for those reasons, be reviewed and set aside.

[9] Counsel for the Respondent, in her written submissions filed herein on 6 March 2019, pointed out that in its Judgment dated 1 April 2008, the Court ordered that:

“The claimants to the portions which constitute the entitlements of the estate of the late Sylvester Kipchirchir Keino should file the appropriate petition and litigate their issues therein.”

And that it was pursuant thereto that the Respondent moved the Court vide her application dated 10 October 2015, which she replaced by the application dated 10 October 2016, seeking the distribution of her late father’s estate. She then provided a brief background to the impugned orders of 7 February 2017 and underscored the Respondent’s posturing that the application dated 10 October 2016 was duly served on the Applicants, as evidenced by their court attendance on 15 February 2016. Accordingly, the contention of Counsel was that, having failed to filed a response to the application as ordered on 15 February 2016 and having failed to attend court on 7 February 2017 for the hearing of the application, the Court was at liberty to proceed with the matter as it did, by dint of the provisions of Order 12 Rule 2 of the Civil Procedure Rules.

[10] The application is expressed to have been brought under Rules 49, 59 and 63 of the Probate and Administration Rules; and having given it careful consideration, the single issue for determination is the question whether good cause has been shown for the setting aside of the orders made herein on 7 February 2017. The record shows that the Court perused the Affidavit of Service filed in respect of the application dated 10 October 2016 and was satisfied that service was effected; and therefore that there was no justification for non-attendance by the Applicants. Accordingly, that application was heard and allowed ex parte; in effect distributing, in a summary manner, the estate of the late Syslvester Kipchirchir Keino in this Succession Cause, which was filed in respect of the estate of Kipkeino Arap Boit.

[11] The Applicants are aggrieved and while they may have none but themselves to blame in the light of the explicit orders by the Court dated 15 February 2016 by Hon. Kimondo, J., and 7 February 2017 by Hon. Ogembo, J., it is apparent that, by moving the Court for the distribution of the estate of the Sylvester Kipchirchir Keino herein vide that application dated 10 October 2016, the Respondent acted in disregard of the Judgment dated 1 April 2008. The Court was then dealing with the distribution of the estate of Kipkeino Arap Boit; and one of the beneficiaries was the estate of his son who had predeceased him, Sylvester Kipchirchir Keino. The Court made it clear in its Judgment that:

“The claimants to the portions which constitute the entitlements of the Estate of the later Silvester Kipchirchir Keino should file the appropriate petition and litigate their issues therein.”

[12] In the premises, I am of the considered view that the Applicants have a genuine grievance, whatever their fault; and that sufficient cause has been shown for the setting aside of the orders made herein on 7 February 2017; and that it would only be in the interest of justice for the application dated 10 October 2010 to be heard and determined on the merits. I draw inspiration from Patel vs. East Africa Cargo Services Ltd (1974) EA 75, wherein the guiding principle, in such circumstances, was expressed thus:

"The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules ...”

[13] I also find instructive the expressions of Apaloo, JA in Philip Keipto Chemwolo and Mumias Sugar Co. Ltd vs. Augustine Kubende [1986] eKLR that:

"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits ... Unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline."

[14]The foregoing being my view of the matter, I would allow the application dated 21 April 2017 and grant orders in the following terms, which I hereby do:

[a] That the orders made herein on 7 February 2017 be and are hereby set aside, reviewed and varied; and that the application dated 10 October 2016 be fixed for hearing inter partes;

[b] That leave be and is hereby granted to the Applicants to file a response to the aforesaid application; which response must be filed within 14 days from the date hereof;

[c] That the Costs of the application be costs in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 3RD DAY OF JULY 2019

OLGA SEWE

JUDGE