[2021] KEHC 13044 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 214 OF 1998

IN THE MATTER OF THE ESTATE OF SADHU SINGH NIHAL SINGH SHAM SINGH BAMRAH (DECEASED)

HARJIT KAUR BAMRAH.................................................................APPLICANT

VERSUS

THE ESTATE OF TARLOK SINGH

BAMRAH (DECEASED)...........................................................1ST RESPONDENT

JASWINDER SINGH BAMRAH.............................................2ND RESPONDENT

DALJEET KAUR MUDHAR.....................................................3RD RESPONDENT

SATPAL SINGH AMRAH........................................................4TH RESPONDENT

GURPRIT SINGH BAMRAH...................................................5TH RESPONDENT

RULING

1. The deceased Sadhu Singh Nihal Singh Sham Singh Bamrah alias Sadhu Singh Bamrah alias Sadhu Singh died on 17th October 1997 in Nairobi. He was survived by his widow Swaran Kaur Bamrah (who died on 18th June 1999) and two sons, Harbans Singh Bamrah (who died on 3rd February 1991) and Tarlok Singh Bamrah (who died on 3rd July 2017). His estate comprised:-

(a) Mavoko LR No. 12715/613;

(b) Mavoko LR No. 12715/217;

(c) Nairobi Industrial Area LR No. 209/6990; and

(d) Nairobi West No. 37/241/7.

2. On the basis that the deceased had left a written Will made on 12th June 1997, Swaran Kaur Bamrah and Tarlok Singh Bamrah petitioned this court and on 8th April 1998 were issued with a grant of probate. The grant was confirmed on 23rd April 1999. The petitioners were to share the estate equally as had been provided in the Will. The grant was amended on 4th June 2003.

3. The applicant Harjit Kaur Bamrah is the widow of the late Harbans Singh Bamrah. She lives in the United States of America. By application dated 21st May 2020 she sought the nullification of the deceased’s written Will dated 12th June 1997 and the cancellation of the transmissions of the deceased’s estate. She sought that the estate be shared afresh with her getting an equal benefit in each of the properties of the estate. The application was brought against the respondents who are the estate of Tarlok Singh Bamrah (1st respondent), Jaswinder Singh Bamrah (2nd respondent), Daljeet Kaur Mudhar (3rd respondent), Satpal Singh Bamrah (4th respondent) and Gurprit Singh Bamrah (5th respondent). The 2nd to 5th respondents are the children of the late Tarlok Singh Bamrah. Before the Tarlok Singh Bamrah died, he had transferred LR No. 209/6990 and LR No. 37/241/7 to these children.

4. The applicant challenged the signature of the deceased in the Will, and stated that the deceased was frail and in vulnerable condition at the time he allegedly signed the Will. She indicated that the Will had not provided for her. The respondents opposed the application. They got the deceased’s doctor (Dr. Fankaj) and neighbour Kunnunpurath Ebrahim Aliya to state that although the deceased had cancer he was sharp-minded, of sound mind and aware of his surroundings at the time of the said Will. The respondents stated that upon the death of the applicant’s husband on 3rd February 1991, she was given £135,000/= pounds from the estate of the deceased. When she got a grant in respect of her late husband’s estate she sold his entitlement to Sadhu Singh Bamrah and Tarlok Singh Bamrah who paid her in English pounds. Further, she was given a house at 4 College park, Peterborough PE1 4AW in the U.K. which Tarlok Singh Bamrah paid for. She did not challenge the fact that she had benefitted in this manner from the estate of the deceased and from Tarlok Singh Bamrah.

5. This court on 8th February 2021 delivered a ruling dismissing the application with costs. It found that the deceased left a valid Will which was made when he was of sound mind. The court found that the applicant was present when the Will was read to the family following the deceased’s death, and therefore she had that early opportunity to challenge its validity. Lastly, that she had benefitted from the estate of the deceased.

6. The applicant has come back seeking the review of the ruling and its orders. Her application is dated 25th February 2021. It was made under sections 1A, 1B, 3Aand80of theCivil Procedure Act, Orders 45and51(1)of theCivil Procedure RulesandArticle 159 of the Constitution. The reason for the review was that the applicant had come by new and important evidence, which if was available to the court at the time of the ruling, a different determination would have been reached. The new and important evidence was that the applicant had got Kannunpurath Saydu Mohamed Abdul Karim’s signature to be examined by the document’s examiner John Muinde on 4th February 2021 against that of the witness in the Will of the deceased. The documents examiner had returned an opinion that the signature of the witness on the Will and the signature of Kannunpurath Saydu Mohamed Abdul Karim were not by the same hand. Kannunpurath Saydu Mohamed Abdul Karim had on 20th November 2020 sworn an affidavit in support of the respondents in the dismissed application. In the affidavit, the deponent had stated that he knew the deceased, he was the one who was present when the advocate Vishnu Sharma (now deceased) prepared the Will in English and got him (the deponent) to translate to the deceased in Punjabi language and, upon the deceased confirming the contents, the same had been signed by the deceased in his presence. The deponent had then witnessed the Will. The opinion of the documents examiner was that Kannunpurath Saydu Mohamed Abdul Karim was not the one who had witnessed the Will.

7. The report by the documents examiner was introduced by the affidavit of Pearlyne Omamo in support of the applicant’s application for review. The applicant had not herself sworn an affidavit to support her application. Pearlyne Omamo is the applicant’s counsel in these proceedings. She swore that the applicant had instructed her on the matters in the supporting affidavit that has 16 paragraphs. Counsel also swore a supplementary affidavit that had 16 paragraphs.

8. The respondent opposed the application and stated that the evidence being relied on was such that could have been secured and produced at the time of the application whose ruling is sought to be reviewed. It was stated that there had been no demonstration that due diligence had been exercised by the applicant, because if she had so exercised she could have got the evidence earlier. Secondly, the fact that the applicant had instructed the documents examiner on 4th February 2021 showed that she had not been diligent. The other reason why the application was opposed was because the applicant had not sworn an affidavit to support it; that the applicant’s counsel could not, through the supporting and supplementary affidavits, tender evidence to support the application as she could not prove any of the claims therein. They asked that the court finds that the contents of the two affidavits by counsel Pearlyne Omamo were hearsay, and not admissible.

9. The issue of the supporting and supplementary affidavits by the applicant’s counsel can be dealt with straightaway. In these proceedings, the question whether or not the deceased made a valid Will was contentious. It is trite law that an advocate cannot swear an affidavit on behalf of his or her client on a matter that is contentious. (Regina Waithira Mwangi Gitau –v- Boniface Nthenge [2015]eKLR).Under Order 19 rule 3(1) of the Civil Procedure Rules: -

“Affidavits shall be confined to such facts as the deponent is able of his knowledge to prove:

Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

10. The applicant’s counsel informed the court through the two affidavits that her client could not herself swear the affidavits in good time because she resides in the United States of America in an area that was under lockdown owing to Covid-19, and therefore had instructed her to swear the affidavits on her behalf.

11. In Kenya Horticultural Exporters [1977] Limited –v- Patrick Pape (Trading as Osirua Estate) [1986]eKLR, the Court of Appeal had occasion to consider Order 19 rule 3(1) of the Civil Procedure Rules (which was then Order 18 rule 3(1)) when it observed that even where an affidavit may contain statements of information and belief showing the source and grounds thereof, the deponent has to depone to such facts that he is able of his knowledge to prove.

12. Now that counsel for the applicant stated that her client was in a confined area owing to Covid-19, all that she needed to do was to ask for adjournment to allow for such time that the restriction is removed. It is common knowledge that Covid-19 circumstances in the USA have generally eased. In the Court of Appeal decision in Gerphas Alphonse Odhiambo –v- Felix Adiego [2006]eKLR,it was observed that –

“Ordinarily, an affidavit should not be sworn by an advocate on behalf of his client or clerk when those persons are available to swear and prove the facts of their own knowledge. In appropriate cases such affidavits may be struck out or given little or no weight.”

13. This petition was filed on 5th February 1998, after the deceased died on 17th October 1997. In the impugned ruling, I found that the applicant was shown the Will, which was read to her, before the petition was filed. I found that she benefitted from the estate of the deceased, and the benefit was after the grant in the petition was issued and confirmed. The grant was issued on 8th April 1998, and confirmed on 23rd April 2000. That is about 22 years ago. All this while, the applicant knew about the deceased’s Will, and knew about who had witnessed it. She had the opportunity to subject the signatures of the deceased and his witnesses to forensic examination. She cannot come to court now and say that an inspiration has suddenly come to her to subject the signature of Kannunpurath Saydu Mohamed Abdul Karim to forensic examination. The fact that the applicant did not subject the signatures of the deceased and his advocate to forensic examination would confirm to me that the deceased made the Will which he signed, as did his lawyer.

14. Order 45 rule 1 of the Civil Procedure Rules provides for review of a decree or order on the –

“discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made……………………”

This provision does not allow the court to re-open a matter to a party who has lost the case because of his negligence or indifference (Nabiswa Wakenya Moses –v- University of Nairobi & Another [2019]eKLR).The new evidence must be of such a nature that it could not have within the knowledge of the applicant, and could not have been obtained by him even after the exercise of due diligence. The applicant has to demonstrate that there was no remiss on his part in advancing all possible evidence at the trial. I do not find that, given the circumstances, the applicant has discharged the burden. All that I see is the afterthought attempt by the applicant to discredit the deceased’s Will by all means.

15. Further, I find that, in the particular circumstances of this case, the supporting and supplementary affidavits by the applicant’s counsel touch on the contentious question whether or not the deceased left a valid written Will. It was improper for the applicant’s counsel to swear affidavits concerning the question. Counsel could not prove the matters contained in the affidavits. I will consequently not attach any weight on the averments in the affidavits.

16. In conclusion, I find no merit in the application, which I dismiss with costs.

DATED and DELIVERED at NAIROBI this 14TH JUNE 2021.

A.O. MUCHELULE

JUDGE