[2022] KEHC 72 (KLR)

In re Estate of Nicholas Nzioka Ndeti alias Nzioka Mutheka Ndeti - (Deceased) (Probate & Administration 911 of 2013) [2022] KEHC 72 (KLR) (3 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 72 (KLR)

Republic of Kenya

In the High Court at Machakos

Probate & Administration 911 of 2013

MW Muigai, J

February 3, 2022

Between

Margaret Ng’ondu Ndeti

Applicant

and

Sabina Nduku Tom

Respondent

Ruling

1. The deceased’s demise was on 30th September 2013.

2. The Petition for grant of letters of administration was filed on 20th November 2013 by Christine Mutindi Ndeti and Margaret Ngondu Ndeti.

3. On 14th January 2014 Christine Mutindi Ndeti through her advocates on record Messrs D. M. Mutinda & Co. filed affidavit and annexed the Will of the deceased.

4. On 20th January 2014, Sabina Nduku Tom through her advocates on record Messrs Laichena Mugambi & Company filed Objection to Making of Limited Grant application.

5. On 24th June 2014, Hon. L.J. Nyamweya issued grant of letters of administration to Christine Mutindi Ndeti and Margaret Ngondu Ndeti.

6. Summons for revocation application dated on 4th July 2017 and filed on 13th September 2017 by Margaret Ngondu Ndeti by advocates on record Messrs A.M. Mbindyo & Company.

7. Hon Justice D. K.Kemei delivered Ruling on 24th October 2018.

8. Sabina Nduku Tom & Dennis Mulu Tom filed Petition for letters of administration intestate from the same estate in Succession Cause 937 of 2013.

SUMMONS 9. That the orders made by the Hon. Justice D.K. Kemei on 24th October 2018 be reviewed and set aside.

10. That such further and other relief be granted as this court deems fit and expedient in the circumstances.

11. The application is based on the following grounds:a)That the petition for grant of letters of administration intestate to the Estate of the late Nicholas Nzioka Ndeti was filed by the applicant herein and Christine Mutindi Ndeti in person on 20th November 2013. b)That the matter herein proceeded on the assumption that Succession Cause No. 937 of 2013 had been consolidated with this cause whilst no order for consolidation was made.c)That a consent was record in court on 4th February 2016 between Mr. Mugambi and Mr. Musyimi to have Sabina Nduku Tom and the applicant herein Margaret Ng’ondu Ndeti appointed as Administrators of the Estate whilst Mr. Musyimi had no capacity to record the consent which gave rise to the grant of letters of administration intestate issued on 4th February 2016 and dated 24th June 2016. d)That the hearing date for the application dated 4th July 2017 was fixed on 16th July 2018 in the presence of counsel holding brief for Musyimi Esq. Advocate for the “petitioners” and Ayieko Esq. Advocate for the respondent which date was fixed as 24th September 2018 and no notice was served upon the applicants advocates on record.e)That on 24th September 2018 when the matter proceeded to hearing advocates for the applicant were absent for want of service and neither did a representative from the firm of D.M. Mutinda & Company Advocates attend thus the mater proceeded ex-parte and ruling set for 24th October 2018. f)That a ruling notice was served upon the firm of D.M. Mutinda & Company Advocates and not upon the advocates for the applicant hence the delay in presenting this application.g)That on the 24th September 2018 when the summons dated 4th July 2017 was heard, the date had been fixed on 16th July 2018 by consent between Mutua Makau Advocates holding brief for Musyimi for the petitioners and Ayieko for the respondent but in the absence of a representative from the firm of A.M. Mbindyo & Company Advocates and no notice wa served.

REPLYING AFFIDAVIT BY THE 1ST ADMINISTRATOR 12. That it is true that on 4th February 2016, by consent Margaret Ng’ondu Ndeti and Sabina Nduku Tom were appointed as Administrators of the Estate of Nicholas Nzioka Ndeti alias Nzioka Mutheke Ndeti (deceased).

13. That the Advocates for the parties had the rightful and legal capacity to enter and record the consent.

14. That even without the consent Sabina Nduku is the 2nd wife of the late Nicholas Nzioka Ndeti alias Nzioka Mutheke Ndeti (deceased) and therefore entitled to be appointed an Administrator under the provisions of the Law of Succession Act Law of Kenya.

15. That on 13th September 2017 the Applicant herein filed the application dated 4th July 2017 seeking to revoke and/or annul the grant issued on 14th February, 2016 on the ground that the grant was defective, was obtained fraudulently among other grounds.

16. That on 16th July 2018 the summons application dated 4th July 2017 was indeed fixed for hearing in the presence of all parties and the hearing notice of the said date of 16th July 2018 was served on all parties by the firm of D. M. Mutinda & Co. Advocates when the Judge was not sitting.

17. That the matter was fixed for a further hearing on 24th September, 2018 in court and by consent of the parties but when the matter came up only my advocate was present and the hearing proceeded.

18. That it is the Applicant herein who filed the said application and therefore, it behoved them to ensure that the said application was prosecuted and therefore, they cannot put blame on me, the court or anybody else.

19. That the ruling on the said application was delivered on 24th October 2018 which is now over two years only for the applicant to file this application.

20. That the Court in arriving at its ruling considered the applicant’s application substantively and extensively viz-à-viz the law and arrived at a logical conclusion and the applicant has not adduced a discovery of any new evidence, an error apparent on the face of record or reasonable ground for review of the ruling.

21. That the Applicant and her family lives in the United States of America and are enjoying my late husband’s Estate in the United States without involving me yet they still want to derail this matter in court.

SUBMISSIONS1ST PETITIONER/RESPONDENT’S SUBMISSION (SABINA NDUKU TOM) 22. The Applicant is not being entirely honest with her assertions. She forgets that she had actually approached this same court in High Court Succession Cause No. 911 of 2013 seeking to be appointed as administrator of the estate of the deceased herein. It is only upon the objection by the respondent herein that the court ordered for consolidation of the two petitions. Subsequently, pursuant to the consolidation, the two administrators were appointed by the court; one administrator from each petition. My lord, the applicant’s constant disapproval to the court’s decision only begs to ask one question. Does the applicant object to being appointed as an Adminstratrix of the estate the deceased or is she only objecting to the fact that she was appointed alongside her step-mother whom she so much detests? The answer is very obvious.

23. Court went into the heard of the application dated 4th July 2019 by relying on the evidence on record and arrived at the decision dated 20th October 2018. In her summons the applicant wanted the honourable court to revoke the letters of administration on the basis that the deceased had died testate. She alluded to a will dated 20th November 2011. In his wise decision the honourable Judge ruled that the will had been revoked by the testator’s subsequent marriage pursuant to Section 19 of the Law of Succession Act. A marriage certificate between the testator and the respondent herein is on record. In addition, it was also ruled that the said will was invalid on the basis that it was improperly executed contrary to Section 13 of the Law of Succession Act.

24. On the issue of service of the hearing notice, the advocate for the applicant contends that they were not served of the same hence denied an opportunity to present their case. The same application had been brought to the court by the applicants and therefore, it behoved them to ensure that the same application was prosecuted and therefore, it is unfair to place the same burden on the respondents or courts. In fact the learned Judge in arriving at the ruling, considered the evidence on record by both parties including the applicant’s affidavit before arriving at the determination that the will had been revoked by a subsequent marriage of the deceased pursuant to Section 19 of the Law of Succession Act. Your Lordship, we humbly submit that in the aforesaid circumstances, there is no error on the face of record. Instead, we have stubborn facts that the applicant has failed to challenge.

25. In the case of Abdirmahman Abdi –VS- Safi Petroleum Product Ltd & 6 Others [2011] eKLR the Court of Appeal had this to say:-“The enactment of Section 3A and 3B of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya and later Article 159 (2) (d) of the Constitution of Kenya, 2010 changed the position. The former provisions introduced the overriding objective in civil litigation in which the court is mandated to consider aspects like the delay likely to be occasion, the cost and prejudice to the parties should the court strike out the delay likely to be occasioned, the cost and prejudice to the parties should the court strike out the offering document. In short the court has to weigh one thing against another for the benefit of the wider interest of justice before coming to a decision one way or the other. Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to the technicalities of procedure”.

2ND PETITIONER’S SUBMISSIONS (MARGARET NG’ONDU NDETI) 26. On 4th February 2016, Mr. Mugambi Esq. Advocate for the respondent appeared with Mr. Musyimi Esq. Advocate for the firm of D.M. Mutinda & Company Advocates and recorded a consent to among other things;i.Have Succession Cause No. 911 of 2013 and Succession Cause No. 937 of 2013 consolidated.ii.To have Sabina Nduku Tom and Margaret Ng’ondu Ndeti appointed as Administrators of the Estate.

27. The consent made on 4th February 2016 gave rise to the following orders; for letters of administration to be issued to Sabina Nduku Tom and Margaret Ng’ondu Ndeti as administrators in the consolidated petition.

28. The Applicant seeks to have the orders dated 24th October 2018 reviewed and/or set aside in on the issue of services. The applicants summons dated 4th July 2017 was heard ex-parte in the absence of counsel for the applicant and a Ruling delivered on 24th October, 2018.

29. The summons dated 4th July 2017 was filed in court on 13th September 2017 and the same was fixed for hearing before the Deputy Registrar on 16th July 2018.

30. The matter came up on 13th February 2018 before the Deputy Registry in the presence of Owino Advocate of Laichena for the objector and Kyalo advocate holding brief for Mbithi for the petitioner. On the said date the trial court was engaged in Petition No. 22 of 2012 and thus a date fixed for mention on 22nd May 2018. No mention notice was served upon the applicant’s advocate.

31. On 16th July 2018, Mr. Mutua Makau Esq. Advocate for the petitioners and Ayieko Esq. Advocate was also present for the respondent on the said date the Deputy Registrar fixed the application dated 4th July 2017 for hearing on 24th September, 2018 No hearing notice was served upon counsel for the applicant.

32. On 24th September 2018, the matter was called out before the trial court in the presence of Ayieko Advocate for the respondent, in the absence of D. M. Mutinda Advocate for the 1st petitioner despite having had been represented on 16th July 2018 and in the absence of counsel for the 2nd petitioner who had not been served.

33. The legal incapacity of the applicants advocate referred to the deponent in paragraph 3 of the replying affidavit has not been explained and I wish to draw the honourable court further to Order 19, Rule 3 of the Civil Procedure Rulesto the provision of Rule of the Advocates (Practice) Rules, 1996 which clearly states under paragraph 2 thereof;“Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on forward or non-contentious matter of fact in any matter in which he acts or appears”.

DETERMINATION**__ 34. The Court considered the pleadings and submissions by parties’ through respective Counsel and the issue for determination is whether the Ruling/Orders Hon Justice D.K. Kemei on 24th October 2018 should be set aside or not.Order 45 Rule 1 of the Civil Procedure Rules restricts the grounds for review to the following grounds;a)discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b)on account of some mistake or error apparent on the face of the record, orc)for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.

35. The Applicant posited the issue of parallel proceedings over the same estate of Nicholas Nzioka Ndeti deceased in High Court Probate & Administration 937 of 2013. I sought the said Court File and perused and confirmed that Sabina Nduku Tom & Dennis Mulu Tom filed Petition for letters of administration intestate from the same estate in Succession Cause 937 of 2013 and were issued grant of letters of administration on22nd November 2013.

36. The Court finds from the Court record, that the parties were irregularly engaged in filing parallel matters/suit proceedings over the same estate in both Court files listed above and was procedurally irregular. The record confirms there was no consolidation of the 2 Court files as there was no disclosure to the Trial Court of the parallel Court files. The issue of consolidation does not amount to new and important matter for review.

37. On the issue raised with regard to Consent of 4th February 2016 between Mr. Mugambi and Mr. Musyimi to have Sabina Nduku Tom and the applicant herein Margaret Ng’ondu Ndeti appointed as Administrators of the Estate, and that Mr. Musyimi had no capacity to record the consent which gave rise to the grant of letters of administration intestate issued on 4th February 2016 and dated 24th June 2016 is not a matter for review.

38. The parties entered into the Consent through advocates of the High Court who represented the respective parties’ and appeared before Hon J Muriithi and recorded the Consent on 4th February 2016 as confirmed from the Court record.

39. In the case of;Samson Munikah Practising as Munikah & Company Advocates vs Wedubeh Estates Limited (2007) eKLR, Court of Appeal held;“having considered the background to this matter and especially the long Affidavit of Mr. Munika, together with its annexures we are unable to say that the consent was freely entered into. Indeed, we find that the consent was tainted with illegality, undue influence and the whole transaction as against public policy as the Respondent and its legal advisers wanted to use the court process to achieve what was illegal. We are of the view that had the learned judge considered all these other aspects of the consent judgment he would have reached a different decision.In Flora N. Wasike vs Destino Wamboko (1988) eKLR, Court of Appeal held thus;“…if a consent order is to be set aside, it can only be set aside on grounds which would justify setting of a contract entered into with knowledge of the material matters by legally competent persons…”

40. From the fore going, the issue of Challenging the Consent on record is not by review as it is not a new and important issue that could not be discovered without due diligence, nor is it an error on the face of the record and does not constitute reason.

41. From 2016, the parties and/or Counsel had ample time to file an application for setting aside the impugned Consent on evidence disclosing either coercion, undue influence, fraud, illegality or being contrary to public policy on the part of the parties to the Consent.

42. With regard to the 3rd ground raised by the Applicant, that the hearing date for the application dated 4th July 2017 was fixed on 16th July 2018 in the presence of counsel holding brief for Musyimi Esq. Advocate for the “petitioners” and Ayieko Esq. Advocate for the respondent which date was fixed as 24th September 2018 and no notice was served upon the applicants advocates on record. The matter proceeded ex parte to the detriment of the Applicant.

43. The Court confirms that on 16th July 2018, before Deputy Registrar, Mr. K. Kenei; Mr Mutua Makau Held brief for Mr Musyimi for Petitioners and Mr Ayieko For the Respondents took the date of hearing of the application on 24th September 2017.

44. Both parties were represented and participated in taking of hearing dates, there was no legal requirement to serve notices as both parties’ were represented. It is not a ground for review.

45. This Court observed from the Court record, that the Will of the Deceased of 20th November 2011 at Article 10 prescribes;‘I direct that this Will and the construction thereof shall be governed by the laws of the State of Georgia’

46. This Choice of forum and choice of law expressly ousts the jurisdiction of this Court with regard to the said Will. The Will of the deceased ought to have been processed in the State of Georgia and upon the grant being issued, then it would be filed in the High Court of Kenya for resealing and thereby and contest, challenge or agreement would be dealt with then.Section 77 of Law of Succession Act provides;(1)Where a court or other authority, having jurisdiction in matters of probate or administration in any Commonwealth country or in any other foreign country designated by the Attorney-General by notice in the Gazette, has, either before or after the commencement of this Act, granted probate or letters of administration, or an equivalent thereof in respect of the estate of a deceased person, such grant may, on being produced to, and a copy thereof deposited with the High Court, be sealed with the seal of that court, and thereupon shall be of like force and effect, and have the same operation in Kenya, as if granted and confirmed by that court…….

47. The Applicants have not given any/ sufficient reasons in support of a review. They have not shown any error on the face of the record, any new evidence that has been discovered or any other reason that is legally required to grant a review of the Court orders. Further, the application was filed 3 years after the Ruling of 24th October 2018. Order 45 Rule 1(c) CPR 2010 provides that the application must be made without unreasonable delay. The Applicants have not given any sufficient explanation to justify the delay and 3 years in my opinion is unreasonable delay and therefore due to this, the applicants have not satisfied this Court that the Ruling should be reviewed.

DISPOSITION1. The application for review and/or setting aside the Ruling of 24th October 2018 is dismissed.2. Each party to bear its own Costs as the parties are members of the same family.It is so ordered.DELIVERED SIGNED & DATED IN OPEN COURT ON 3RD FEBRUARY, 2022 (VIRTUALLY)M.W. MUIGAIJUDGE