[2022] KEHC 13578 (KLR)

In re Estate of the Late Joseph Mutua Kathau (Deceased) (Succession Cause 214 of 2015) [2022] KEHC 13578 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13578 (KLR)

Republic of Kenya

In the High Court at Kitui

Succession Cause 214 of 2015

RK Limo, J

October 5, 2022

(Formerly Machakos High Court Succession Cause No. 555/2015) IN THE MATTER OF THE ESTATE OF THE LATE JOSEPH MUTUA KATHAU (DECEASED)

Between

Rhoda Syomiti Kiilu

Applicant

and

Mary Mwikali Mutua

Respondent

Ruling

1. Henry Ithea Kiema and Ann Mumbi Hinga, the 1st and 2nd Applicants respectively have come to this court vide chamber summons dated 4. 01. 2022 seeking the following Orders namely: -i.Spentii.That the Status quo that obtained before this court made the orders on 6/10/2020 be maintained pending the hearing and determination of this application.iii.That this Hon. Court be pleased to issue an Order for Stay of proceedings and/or stay of further proceedings in this matter pending the hearing and determination of Kitui Chief Magistrate Court Case, Succession Cause No. I of 2016 (Henry Kiema & Anor. versus Solomon Ibia Kiema) in the Chief Magistrate’s Court.iv.Costs of this application.

2. The applicants have listed the following grounds as the following grounds as the basis of the reliefs being sought herein: -a.That there is existence of a succession cause No. Kitui Chief Magistrate Civil Case Succession Cause No. 1 of 2016 which they claim relates to estate of the late Ibia Nthei who was the father of the parties herein.b.That in the aforementioned cause, the late Joyce Kiema together with Solomon Ibia Kiema were initially the appointed administrators.c.That there is a pending summons for revocation of grant in the aforementioned cause where one of the grounds for the revocation of grant is fraud.d.That some of the assets listed under paragraph 5 of the affidavit in support of summons for confirmation of grant and approved for distribution are properties fraudulently distributed to the deceased herein and specifically the following properties namely;i.Kyangwithya/Misewani/1401ii.Kyangwithya/Mutune/977e.That the confirmation of grant in this cause took place in secrecy and that the respondent did not disclose that some properties in this cause are disputed in Kitui CMCC Succession Cause No. 1 of 2016 on grounds of forgery.f.That the applicants are apprehensive that if the orders sought are not granted the respondents will administer the estate in this matter which may render the outcome in Kitui CMCC No. 1 of 2016 a mere academic exercise.g.That failure to file a protest in this matter before the grant was confirmed, was occasioned by the pending application for transfer of Kitui CMCC Succession Cause No. 1 of 2016. h.That in view of the above this court should intervene for the interest of justice.

3. The 1st Applicant, Henry Kiema, has sworn an affidavit in support of this application sworn on 4th January, 2022 where he has majorly reiterated the above grounds.

4. He has exhibited an application dated 20th July, 2016 filed vide Kitui CMCC Succession Cause No. 1 of 2016 and avers that the same is pending for determination. The application therein relates to the estate of Kiema Ibia Nthei (deceased).

5. The deponent has further averred that the assets in this cause are essential the same assets in Kitui CMCC Succession No. 1 of 2016.

6. In their written submission dated 7th July, 2022 done through M/s Apollo Muinde & Partners Advocates the applicants contend that the 1st Respondent without their knowledge illegally transferred their late mother’s estate when the 1st applicant was working in the United States.

7. They contend that though they had initially sought for rectification of grant herein, they opine that the ends of justice will be served if the proceedings herein are stayed for a limited time to pave way for the finalization of the lower court matter.

8. They contend that if the two matters proceed simultaneously it would clog the wheels of justice because in their view the issues are similar. It is their contention that the lower court be allowed to unravel the issue of common assets which form the basis of the petitions. They rely on the decision of Gichuhi Macharia & Duncan Mwaura Kamau versus Kiai Mbaki & 2 Others [2016] eKLR and the case of Waweru Mugo & 10 Others versus Titus Timo Macharia & Anthony Macharia Gichuhi (Citation not given).

9. They submit that this court should consider a number of issues in determining whether to grant stay and that the overriding factor should be to serve the interest of justice.

10. They contend that this court has wide discretion through inherent powers donated by Section 3A of the Civil Procedure Act.

11. The Respondents have opposed this application through written submissions dated 26. 07. 2022 done through M/s J.K. Mwalimu & Co. Advocate.

12. The Respondent contend that this application is an abuse of the court process because the applicants are in effect seeking to stay their own application dated 6th September 2021. The Respondents claim that the same is a demonstration that the applicants do not want to see litigation coming to an end.

13. The Respondents aver that the grant herein was confirmed when the applicants failed to make any alternative proposals.

14. The Respondents submit that the grant issued vide Kitui CMCC Succession Cause No. 1 of 2016 was confirmed over 33 years ago on 11. 04. 1998 and that the estate was fully distributed and no issue was ever raised during the lifetime of Joyce Mwihaki Kiema(deceased). In their view there is no nexus between Succession Cause No. Kitui Cause Succession No. 1 of 2016 and this cause insisting that the file in the lower court was closed 33 years ago.

15. This court has looked at this application and the response done through written submissions from the respondent’s counsel. For the record, the respondents did not file any replying affidavit or ground of objection. They only filed written submissions through Counsel and raised the issues I have highlighted above.

16. Before I consider the main issue in this application which whether or not the proceedings herein should be stayed, I will look at the brief background of this matter in order to give a clear perspective.

17. The initial grant in this matter was issued on 14. 08. 2013 and confirmed on 4th June 2014. The grant issued was in respect to the estate of Joyce Mwihaki Kiema (deceased) and was issued to Solomon Kiema Ibia & Samson Mwathi Kiema vide Kitui CM’s Court Succession Cause No. 115 of 2013. Later Henry Ithea Kiema and Anne Mumbi Hinga vide summons for revocation of grant dated 18. 11. 2014 sought to have the grant revoked and Hon. Justice Mutende vide her ruling dated 17. 1.2017 revoked the grant on grounds that the lower court lacked monetary jurisdiction to deal with the matter.

18. The record herein shows that on 19. 1.2019 the following persons were appointed administrators of the estate of the late Joyce Mwihaki Kiema.i.Solomon Ibia Kiemaii.Samson Mwathi Kiemaiii.Henry Ithea Kiemaiv.Anne Mumbi Ikinga

19. The administrators were then given time to engage and possibly agree on the issue of distribution after they sought 30 days to do so on 30. 01. 2019.

20. On 5. 03. 2019 when the matter came up in court for mention to find out if there was any settlement, the parties sought more time and the court obliged and filed the matter for mention on 25th April 2019. On that date, the administrators through Counsel informed the court that they were facing difficulties agreeing and sought for more time.The court granted them more time up to 11. 07. 2019 to come up with a settlement. On that date again no settlement had been reached and the court directed the parties to file summons for confirmation of grant.On 6. 10. 2020, this court took over the matter and was notified by the respondents’ counsel Mr. Kilonzi Advocate that they had filed summons for confirmation of grant dated 17th September, 2019 and there was no protest filed. Mr. Mungai appearing for Nyamu for objectors asked for time to put in a protest because he had instructions to do so. He further informed this court that there was a related matter at the lower court which was scheduled for hearing on 13. 10. 2020. The respondents’ Counsel Mr. Kilonzi on his part informed this court that the lower court matter was settled 30 years ago and that any application for revocation of grant was strongly contested.

21. This court then gave directions that the summons for confirmation dated 17. 09. 2019 was uncontested and since almost a year had lapsed without any protest or challenge, this court found it expedient and fair to have the grant confirmed as proposed by the respondents in that application because all the beneficiaries were equally catered for with equal shares.

22. After confirmation of grant, the applicants moved this court vide an application dated 27. 10. 2020 where they sought to stay the Order of Confirmation of grant and also sought to have it set aside basically on grounds of existence of the Succession Cause No. Kitui No. 1 of 2016 at Chief Magistrate’s Court Kitui.

23. This court gave directions on 20. 04. 2021 that the said application dated 27. 10. 2020 be canvassed through written submissions and since the respondents had also filed a preliminary objection to the said application this court directed that both the application and the preliminary objection be canvassed simultaneously. Parties were given 30 days each to file their respective submissions.

24. On 15. 07. 2021, the applicants counsel Mr. Apollo muinde, stated that they had not filed submissions and sought for time to engage since the matter was a family matter. The respondents through Mr. Mwalimu protested stating that the applicants were out to delay the matter and were not interested in proceeding with their application dated 27. 10. 2020.

25. This court gave the applicant time to put in their submissions and put them on notice that they would not be given more indulgence unless they took the matter seriously. They were given 7 days from 15. 07. 2021 to put in their submissions on the said application.

26. On 16. 09. 2021 when the matter came up, the applicants counsel informed the court that they had decided to withdraw their application dated 27. 10. 2020 and had at the same time filed a fresh one dated 6. 09. 2021 where they sought to have the grant rectified and for further variation or review of the mode of distribution of the estate herein.

27. On the 18th October, 2021, the parties through their Counsels appeared before this court and sought directions on how the application dated 6. 09. 2021 would be canvassed and this court directed that application dated 6. 01. 2021 would be canvassed through written submission and gave the applicants 30 days to file and serve their submissions and the respondents were given same period to file response upon service, the matter was then fixed for mention for further orders.

28. On 6. 01. 2022, the applicants lodged the instant application under certificate of urgency seeking the prayers now under consideration in this ruling.

29. The substantive prayer being sought herein is a stay of proceedings and while the applicants have invoked the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, the relevant provisions that deal with inherent powers of this court in probate matters are domiciled under Section 48 of the Law of Succession Act and Rule 73 of Probate and Administration Rules.

30. The applicability of the Civil Procedure Act is limited under Rule 63 of Probate and Administration Rules. Sections 1A, 1B & 3A of Civil Procedure Act do not apply to. That notwithstanding, this court is inclined to determine this application on merit rather than on the basis of a technicality.

31. Having set out the background of this cause, it is evidence that this cause was essentially finalized through the Order of this court made on 6th October, 2020 which Order distributed the estate of the deceased herein in the manner proposed by the 1st Applicant under paragraph 5 of his affidavit in support of the confirmation of grant. The Certificate of Confirmation dated 8th October, 2020 as observed above distributed the estate of the late Joyce Mwihaki Kiema equally among all the beneficiaries.

32. The applicants vide a further application dated 6. 09. 2021 sought to review and / or set aside the order of this court in respect to the distribution of the estate herein. That application in my view could have been determined by now had the applicants complied with the directions to file their submissions in respect to the prayers sought. Instead they have now moved to stall their own cause and are here seeking approval from this court. That in my view is untenable for the following reasons;i.The applicants first applied for similar orders through prayers (2) and (6) in their application dated 27th October 2020. The record shows that the applicants dilly dallied with that application when they were directed to file submissions and when push came to shove, and after they were given 7 days to file their submissions they withdrew their application dated 27. 10. 2021 and filed the application dated 6. 09. 2021. The Orders sought in the two applications are similar in effect which in my considered view is not in good faith as the conduct is akin to someone out to buy time and cause unnecessary delays.ii.Secondly, the applicants as evidently seen from the proceedings, I have highlighted are also not keen to prosecute their pending application dated 6. 09. 2021. This is because they were given time (30 days to be precise) from 18. 10. 2021 to file their submissions on their application which means they were to file their submissions on or before 17th November 2021 but they did not.Instead they waited until 6. 01. 2022 when they moved this court through the instant application seeking to stay the proceedings. The question posed is which proceedings? It is obvious that the only proceedings pending in this matter are in respect to their application dated 6. 09. 2021. This in effect means that the applicants are actually seeking to stall the determination of their own application. That in my view is an abuse of court process. How can a litigant move the court and when the court moves to adjudicate and determine the cause, he/she comes up and say sorry halt? The applicants in my view through their conduct appeal for unknown reasons appear reluctant to have their application dated 6. 09. 2021 determined timely. This is because when they appeared in court on 18. 10. 2021 for directions in respect to their aforementioned application, they sought to proceed by way of oral evidence for no reason yet the issues raised could easily be canvassed vide written submissions. When this court directed that submissions on the application be filed within 30 days from 18. 10. 2021, they faltered and instead are nor now seeking to have proceedings on their own application stayed. The applicants evidently are out to use the process of this court to delay their own cause which I find to be an abuse of the court process.

33. The reasons advanced to the effect that there is a pending cause similar to this cause in my view is an excuse rather than the main reason in this application. This is because when the applicants first raised the issue way back on 6. 10. 2020, I asked them to (a) provide evidence of the pendency of the matter and(b)Provide link or nexus between this cause and the cause in Kitui CMCC Succession No. 1 of 2016. The same was not forthcoming and that is why this court proceeded to confirm the grant. In this application the applicants have exhibited Summons for Revocation of Grant (S.R.G) dated 20. 07. 2016. Other than that, there is nothing to show how the lower court proceeded in the said application filed in 2016. There is no evidence tendered to show if the application was ever heard and if so what was the outcome? At the same time there is also nothing to explain why the matter has remained undetermined since 2016 if that is the case? There is also no evidence that the two causes are related other than the fact that the deceased in Kitui CMCC Succesion No. 1 of 2016 was the husband of the deceased (Joyce Mwikali) in this cause. That relationship is insufficient in itself to persuade me to stay the proceedings in this cause. That finding is fortified by the reasons given by the respondent that the cause in the lower court was determined over 30 years ago and the estate fully administered. The applicants of course have a right to move the court for revocation of grant if they have good valid reasons but they have not persuaded me that the interest of justice would be served with an order of stay of proceedings in this cause.On the contrary, a stay of proceedings would not serve the interest of expediency in bringing litigation to an end.In the premises and for the reasons above, this court finds no merit in the application dated 4. 01. 2022. I would not have made Order as to costs but given the conduct of the applicants in this matter, I find that they should pay costs to the respondents which should be agreed or taxed.

DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF OCTOBER, 2022. HON. JUSTICE R. K. LIMOJUDGE