[2022] KEHC 17250 (KLR)

In re Estate of Lesinko Sokorte Kirayio (Deceased) (Succession Cause 34 of 2019) [2022] KEHC 17250 (KLR) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17250 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause 34 of 2019

SN Mutuku, J

December 2, 2022

In the matter of

Nyokabi Lesinko Leserogerere

1st Administrator

Naimutie Sokorte

2nd Administrator

Ruling

1. Pending determination of two applications, Summons for Confirmation of the Grant dated July 24, 2019 by the second administrator and Chamber Summons dated July 27, 2020 by F A Badia, advocate seeking to be enjoined in these proceedings in her capacity as the former advocate of the 1st Administrator and creditor to the estate of the deceased, the 1st administrator sought to have the orders dated May 10, 2022 reviewed.

2. The Grant of Letters of Administration intestate was issued by this court on June 26, 2019 to Nyokabi Lesinko Leserogerere, 1st Administrator, and Naimutie Sokorte, 2nd Administrator. It is in respect to that Grant that the Summons for Confirmation of Grant dated July 24, 2019 is based.

3. From the court record, the Application dated July 27, 2020 was allowed by the court vide the ruling delivered on November 8, 2021. The Summons for Confirmation of the Grant is pending determination.

4. To bring this matter into perspective, it is important to revisit the orders dated May 10, 2022, which the 1st Administrator seeks to have reviewed. The orders read as follows:“The 1st Administrator, Nyokabi, was given the last chance to engage counsel. She filed an application to have M/s Moseti & Co Associates cease from acting. She is not in court today to prosecute that application. Mr Shikuku, who appeared virtually and told the court that he is representing the 1st Administrator has not filed Notice of Appointment. He sought time up to 12. 30pm to attend court in Kajiado. This was allowed. It is now 1. 00pm. He is not in court. The 1st Administrator is also not in court. I will allow the joint Administrator to proceed with her case. 2nd Administrator to be examined.”

5. Court record shows that after Naimutie Sokorte, 2nd Administrator, was examined, this court allowed parties 14 days to file submissions. The Deputy Registrar of this court was directed to serve the order to the 1st Administrator. Thereafter, the matter was given a mention date to confirm compliance and give further directions on July 6, 2022.

6. On that date, Mr Shikuku, learned counsel, appeared for the 1st Administrator told the court that he had a complaint against Mr Sankale counsel for the 2nd Administrator. I fixed the matter for September 19, 2022 to allow Mr Shikuku submit on the issues he was raising.

7. Mr Shikuku submitted that he was raising an application for review of the orders dated May 10, 2022. He submitted that on that date, he came o record for the 1st Administrator, Nyokabi; that he had filed Notice of Appointment the day before but it had not been reflected in the court file when he appeared in court; that Nyokabi had been granted leave to source for another advocate; that given the convoluted nature of the case, he sought leave to adjourn the matter to allow him time to understand the issues.

8. He submitted that he physically appeared in court to explain to Mr Sankale, for the 2nd Administrator, who had stated that his client was aged and could not understand why the matter had to be adjourned; that he arrived at 1. 05pm and met Mr Sankale and Ms Badia; that he served Mr Sankale with Notice of Appointment which he acknowledged on the same day; that Mr Sankale told him that he was going for lunch; that he waited patiently until 3. 00pm; that the court was proceeding virtually; that he approached the court and was informed that the matter has proceeded and was referred to the Deputy Registrar for the details of what directions had been given.

9. Mr Shikuku further submitted that the proceedings of May 10, 2022 locks out his client, Nyokabi from participating further in these proceeding and this will occassion injustice to her. He sought leave to be allowed to participate in these proceedings by having the orders of May 10, 2022 reviewed or to have the 2nd Administrator recalled for cross examination and the 1st Administrator allowed to tender evidence. He argued that this is within this court’s jurisdiction to grant.

10. In response to the submissions by Mr Shikuku, Mr Sankale for the 2nd Administrator opposed the application by Mr Shikuku. He narrated the events leading to the issuance of the orders of May 10, 2022 and argued that on May 10, 2022 counsel for the 1st Administrator arrived in court after the matter had proceeded and directions had been given. He further stated that it was not the first time that parties are testifying in open court; that they had been recalled to testify. He argued that his client is bed-ridden and is unable to secure her attendance as she is frail and sickly; that the 1st Administrator’s advocate should not be allowed to re-open the case without showing justification and that the mistake of the 1st Administrator and her counsel should not be visited on the 2nd administrator.

11. M/s Badia argued that on May 10, 2022 the matter proceeded from 12:47pm to around 1:20pm; that by the time counsel for the 1st Administrator arrived the proceedings for the day had been concluded and directions issued. She argued that this is an old matter and the 2nd Administrator was quite ill. Further that to re-open a case a basis needs to be laid which has not been done in this case. She submitted that justice cuts both ways and that no wrong has been pointed to the court. She urged that the application by the 1st Administrator should therefore be dismissed.

Determination 12. To understand the events that gave rise to the orders of May 10, 2022, it is crucial to read the court record. I inherited this matter on November 2, 2022. On that date, Mr Moseti appeared for the 1st Administrator, Mr Sankale for the 2nd Administrator and Ms Badia for her firm. After listening to the parties as the record for that day will show, this court reserved the matter for ruling/directions on November 8, 2021 in respect of the application by Ms Badia dated July 27, 2020 seeking several orders, the gist of which was to enjoin her firm in these proceedings as a creditor of the estate of the deceased. Mr Sankale was not opposed to that application and Mr Moseti told the court that he did not intend to file any submissions in respect of that application and that the court could proceed to pronounce itself on that application.

13. On November 8, 2021, I delivered the ruling and allowed the application dated July 27, 2020. After the delivery of the ruling, Mr Sankale told the court that for the Summons for Confirmation of the Grant, they could have the two administrators each of who represented their own households to testify to safe on time. This proposal was agreeable to Mr. Moseti who also told the court that he sought leave to file “a small application” to be argued together with Summons for Confirmation.

14. Mr Sankale responded that he did not understand the nature of the application and Ms Badia told the court that all pending issues would be sorted out once both administrators testified. Mr Moseti responded that in view of what his colleagues had stated he had forgone the prayer to file the application to pave the way to having the matter heard. This court fixed the matter for hearing on February 2, 2022.

15. On February 2, 2022, Nyokabi told the court that her counsel Mr Moseti had told her the previous day that he would not attend court and that she should look for another advocate; that she did not have time to engage another advocate and therefore she sought leave of the court to do so. This application was opposed by Mr Sankale and Ms Badia who argued that Nyokabi had delayed the matter by changing advocates.

16. I granted Nyokabi one more chance to engage an advocate and to have Mr Moseti file and application to cease from acting. Matter was adjourned to March 2, 2022 on which day this court was not sitting. Matter was adjourned to May 10, 2022.

17. On May 10, 2022, during virtual proceedings, Mr Shikuku appeared for Nyokabi and sought time to read the file and prepare for the hearing arguing that he had just been instructed. This was opposed by Mr Sankale who was already at Kajiado High Court. I allowed Mr Shikuku time up to 12. 30pm to travel to Kajiado High Court for the hearing.

18. The session started at 12. 45pm. Mr Shikuku and his client Nyokabi were not in court. Mr Sankale complained on behalf of his client that Nyokabi had not engaged another advocate, three months down the line and did not even attend court; that Nyokabi had been allowed last chance but had not complied with court order. Ms Badia urged that the parties present be heard. This gave rise to the orders now being sought to be reviewed. I allowed the 2nd Administrator to testify after which I allowed parties 14 days to file submissions.

19. It is now clear that Mr Shikuku attended court after the court had rose from the session as argued in these proceedings. It is clear to me that this court is being asked to re-open the case to allow Nyokabi to testify.

20. In Samuel Kiti Lewa v Housing Finance Co of Kenya Ltd & Another [2015] eKLR, the court held that:“The court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard re-opening of a case should not be allowed where it is intended to fill gaps in evidence.”

21. It is not lost to me that the application to have Mr Moseti cease from acting for the 1st Administrator is still pending. It has not been prosecuted. It is also not lost to me that Nyokabi spent three months before she instructed Mr Shikuku. This delay in complying with directions of the court was not explained.

22. The issue I should determine is whether the 1st Administrator has shown cause why this court should re-open this case. It is clear to me that Nyokabi is not forthright in her actions. The delay in engaging another counsel and in having the application to have Mr Moseti cease from acting prosecuted indicates an attempt to delay the conclusion of this matter. This court is on record in allowing her the last chance to engage a lawyer but she sat on her rights.

23. She is one of the administrators of the estate of the estate of the deceased and this court has noted rulings in this case on some of the issues being raised by Nyokabi to which I decline to delve into until the time of making my determination on the pending application.

24. As the matter stands, the prayer to re-open this matter and recall the 2nd Administrator for cross examination is denied. Let the 1st Administrator file her submissions as directed by this court to enable the determination of this matter.

25. Further let the issue of representation be sorted out by having the application to have Mr Moseti cease from acting for Nyokabi determined. Consequently, I decline to grant the application by Mr Shikuku. I allow the 1st Administrator 21 days to put in her submissions.

26. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 2ND DECEMBER, 2022. S N MUTUKUJUDGE