[2024] KEHC 1465 (KLR)

In re Estate of the Late Kangangi Kairaria (Deceased) (Succession Cause 2 of 2020) [2024] KEHC 1465 (KLR) (15 February 2024) (Ruling)

Neutral citation: [2024] KEHC 1465 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 2 of 2020

LW Gitari, J

February 15, 2024

FORMERLY MERU HIGH COURT SUCCESSION CAUSE NO. 246 OF 1995 AS CONSOLIDATED WITH SUCCESSION CAUSE NO. 251 OF 2021 IN THE MATTER OF THE ESTATE OF THE LATE KANGANGI KAIRARIA (DECEASED)

Between

M’ndaka Kangangi

1st Applicant

Mwiti M’Ndaka

2nd Applicant

Benedictor Njiru Riungu

3rd Applicant

Martin Miriti M’ndaka

4th Applicant

Celina Kaimenti Kirugara

5th Applicant

Jediel Muriuki

6th Applicant

Robert Mugendi Nabia

7th Applicant

Saul Nthiga Mbiuki

8th Applicant

and

Peter Gitonga Mutuamwari

Administrator

and

Majani Gardens Limited

Respondent

Ruling

Background 1. This matter relates to the estate of Kangangi Kairaria deceased who died intestate on 13/5/1981. A petition for the grant of letters of administration in his estate was issued to M’Ndaka Kangangi in the Succession Cause No. 246/1995. The said grant was confirmed on 8/4/1997 in favour of M’Ndaka Kangangi. The estate was stated to be Mwimbi/Chogoria/1086. The estate was distributed as follows:-i.M’Ndaka Kangangi - 8. 307 Acresii.Mwiti M’Ndaka - 6. 0 Acresiii.Martin Mwiti M’Ndaka - 5. 0 Acresiv.Ashford Nkonge M’Ndaka - 5. 0 Acresv.Teresio Njaban Mutua Ndaka- 5. 0 Acresvi.Hampaly M’Ndaka - 5. 0 Acresvii.Eugenio Murungi Henry - 5. 0 Acres

2. This grant was later revoked following an application made by Joseph Murungi Gitonga who was claiming to be a cousin to the Petitioner and a nephew to the deceased. It was alleged that the Petitioner had failed to disclose some of the beneficiaries and that he had sub-divided the estate into six portions namely Mwimbi/Chogoria/2355, 2357, 2358, 2359, 2360 and 2361 which were disposed off. In a ruling by Justice Ouko (as he then was) and delivered to the parties on 13/7/2009 by Justice Kasango (retired.) The said grant was revoked and the Judge ruled that-“This in effect means that the subdivision and transfer of the suit property was of no effect.”

3. Thereafter another Succession Cause in the estate of the deceased was filed by Joseph Muriungi Gitonga being Succession Cause No.251/2012. The two Succession Causes were consolidated on 22/9/2014 and matters proceeded in Succession Cause No.246/1995. It is important to note that after the grant was revoked in Succession Cause 246/1995, the Judge did not appoint an administrator. The grant issued to Joseph Murungi Gitonga the Petitioner in Cause No.251/2012 was revoked vide an order by Justice Gikonyo on 22/5/2018. A fresh grant was issued to Peter Gitonga M’Amwari on 22/5/2018 and confirmed on 18/9/2018. The estate was distributed as follows: Joseph Murungi Gitonga - 12. 58 Acres

Peter Gitonga M’Amwari - 12. 58 Acres

Benard Njeru Kariuki - 12. 58 Acres

4. On 18/7/2018, Justice Gikonyo rectified and confirmed the said and determined that the matter was finalized.

5. The 1st Applicant herein, M’Ndaka Kangangi (now deceased), filed the summons for revocation of grant dated 4th March, 2021. The application is brought under the provisions of section 76 of the Law of Succession Act and rule 73 of the Probate and Administration Rules. The 1st Applicant sought for the revocation of grant of letters of administration intestate issued to the 1st Respondent herein, one Peter Gitonga Mutwamwari, in respect of the estate of Kangangi Kairaria who died intestate on 13th May, 1981.

6. The application is based on the grounds that:i.The proceedings to obtain the grant were defective in substance.ii.The grant of letters of administration and subsequent confirmation was obtained, inter alia, by fraud by the then Petitioner’s/Applicant’s/Interested Party’s advocate, by concealment of material facts from the court and by the administrator/1st Respondent making false claims in filing and having summons for confirmation of grant confirmed.

7. The application is supported by the affidavit of the son to the deceased herein, the M’Ndaka Kangangi (now deceased), which was sworn on the same 4th March, 2021.

8. It is the applicants’ case that the 1st Respondent secretly and fraudulently filed Meru H.C. Succession Cause No. 251 of 2012, obtained a grant of letters of administration, and sold the whole estate to the 2nd Respondent herein. That the 1st Respondent secretly filed summons for confirmation of grant without informing the 2nd Applicant and that the said summons were heard ex-parte and the grant confirmed on 18th September, 2018.

9. In response to the present application, the 1st Respondent filed a Replying Affidavit sworn by himself on 4th May, 2022. He deposed that the Applicants have always been aware of the proceedings in this cause and in fact filed an application dated 1st July, 2014. That the said application clearly shows that all the applicants have been alive to the proceedings in this case. That the Applicants concede that they filed an application for revocation of grant dated 9th June, 2014 which was compromised by consent of the parties although they allege that their advocate, was compromised to enter into consent on 22nd May, 2018.

10. The 1st Respondent further deposed that since the application for revocation of grant dated 9th June, 2014 was settled by consent, the present application is res judicatato the application dated 9th June, 2014. The 1st Respondent stated that this Honourable Court pronounced itself in this matter vide its ruling of 19th November, 2020 to the effect that the matter had been finalized and there was no pending application for revocation of grant. The 1st Respondent contends that the Applicant has not shown or produced any fraud on the part of his former advocate. That he was related to the 1st Applicant as they were cousins and that their respective rights to the suit land was determined by the land disputes tribunal and the same adopted as an order of the court. It is the 1st Respondent’s contention that the Applicants are only trying to delay justice

11. On behalf of the 2nd Respondent, one Ronald Mutuma Mutai, with the authority of the 2nd Respondent Company, deposed, vide his Replying affidavit sworn on 13th June, 2023, that the present application is riddled with false averments and that all the applicants herein were aware of all proceedings. That the applicants were represented by counsel throughout the proceedings and that if indeed their lawyer was compromised, they have not shown any action that they took against the lawyer. Mr. Ronald deposes that the instant application is an afterthought and that the same was instituted as with the sole intention and purpose of refreshing the judgment obtained by the 2nd Respondent herein against them in Chuka E.L.C. No. 8 of 2020. According to him, the Appellants herein are trying to appeal against the judgment that was delivered in Chuka E.L.C. No. 8 of 2020.

12. The present application is opposed by the Replying Affidavit sworn by Peter Gitonga M’Amwari the Administrator herein on 4th May, 2022. According to him, this matter was concluded and the Applicants have always been aware of the proceedings in this cause. That the Applicants participated by filing an application for revocation of grant dated 9th June, 2016 but the same was decided by consent between the parties. According to the Administrator, the present application for revocation of grant is res judicata to the application dated 9th June, 2014 as the same was determined by a consent order on 22nd May, 2018. That this Court pronounced itself by its ruling of 19th November, 2020 to the effect this matter was finalized.

13. On 14th June, 2023, the Respondents filed a Notice of Preliminary Objection dated 13th June, 2023 on the grounds that:i.The application dated 4th March, 2021 is res judicata to the application dated 24th July, 2014;ii.The court is functus officio by dint of the ruling delivered by this honourable court on 19th December, 2020. iii.The application and the suit be struck out with costs.

14. In response, the 2nd Applicant (referring himself as the 1st Applicant) swore a supplementary affidavit on 22nd June, 2023 in which he deposed that the allegation that the present application was res judicata is a misunderstanding of the law of succession. That the application dated 9th June, 2014 sought to revoke the grant issued and confirmed in Meru Succession No. 251 of 2012, which grant was subsequently revoked. That, on the other hand, this application seeks to revoke the grant that was confirmed on 18th September, 2018 on the grounds that some of the beneficiaries were not aware and were not served with the summons for confirmation of grant. Further, that the firm of Kirimi Mbogo & Co. Advocates was not representing all the Applicants herein and the said advocate cannot be said to be representing people whom he was not representing. According to him, this court could issue summons to the said advocate to confirm who he was representing in the matter as his Notice of Appointment indicated that he was only representing some of the applicants in the matter and not all of them. He who alleges must prove. Section 107 of the Evidence Act provides:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

15. The legal burden was on the applicant who would lose the ease if the allegation was not proved. Section 108, & 109 of the Evidence Act provides:108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that personwho would fail if no evidence at all were given on either side.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

16. A party cannot therefore urge the court to descend into the arena of conflict. It remains impartial.

17. The contention that the revoked grant was issued in Meru High Court Succession Cause No. 251 of 2012 is wrong. The Ruling by Justice Ouko was issued in Succession Cause No.246/1995 and revoked the grant issued to M’Ndaka Kangangi.

Analysis 18. The late M’Ndaka Kangangi (the 1st Applicant herein) is the father to the Mwiti M’Ndaka (the 2nd Applicant herein). He deposed that he instituted succession proceedings in respect of the subject estate vide Meru High Court Succession Cause No. 246 of 1995 and obtained a grant upon which he distributed the estate to his sons prior to the said grant being revoked on 7th July, 2009. The 1st Applicant died before the summons for revocation of grant could be heard and determined. He thus obtained letters of administration ad litem for purposes of substituting his late father in this cause which application was allowed on 13th October, 2022. The said Mwiti M’Ndaka deposed that he wished to rely on the affidavit evidence sworn by his late father in support of the present application.

19. The Applicant alleges that their advocate was compromised to enter the consent for 22nd May, 2018 which consent compromised the application for revocation dated 9th June 2016. In response to this contention, the Respondent maintains that the Applicant has not brought any evidence to substantiate his claim that his former advocate was compromised through fraud. According to the Respondent the present application should be dismissed with costs.

20. I have considered the issues raised by the parties. A brief background of this cause would suffice at this point so as to facilitate the expeditious disposal of the same.

21. The matter relates to the estate of the late Kangangi Kairaria who was the father to M’Ndaka Kangangi (now deceased). The deceased herein only had one property to his name, that is, Mwimbi/Chogoria/1086 (the “suit property”). The said M’Ndaka Kangangi was the father of the 2nd Applicant herein.

22. The letters of administration in respect of the estate of the deceased herein were issued and later confirmed on 8th April, 1997 in favour of the late M’Ndaka Kangangi. After the grant was confirmed as above, one Joseph Murungi Gitonga (also deceased) brought an application indicating the grant that the grant confirmed in favour of the late M’Ndaka Kangangi had been obtained fraudulently and making of a false statement.

23. Despite due service of the application, the late M’Ndaka Kangangi did not appear before court or send his counsel to represent him. The application was thus argued ex parte. W. Ouko, J. (as he then was) noted that while the late Joseph Murungi Gitonga had filed an affidavit filed on 19th February 2009, but sworn on 19th February 2006 which affidavit indicated that he was representing two other people.

24. The court found that the two were strangers to these proceedings as there had been no mention of them in the summons other than that they were beneficiaries of the deceased. The court further found that the confirmed on 8th April, 1997 in favour of the late M’Ndaka Kangangi had been issued by the Deputy Registrar who had no power to issue or confirm the grant. For this reason, the grant was revoked on 13th July, 2009. However, the late M’Ndaka Kangangi had already sub-divided the suit land into six (6) portions and some of the new registered owners had disposed off their shares.

25. Consequently, the late Joseph Murungi Gitonga filed Chamber Summons dated 25th February, 2010. The Court (M. Kasango, J. as she then was) ruled on 28th May, 2010 that on the subsequent hearing of the Chamber Summons dated 25th February, 2010, the registered owners of the sub-divided parcels should be served with the application so that they could be heard. I note that the ruling by Justice Ouko addressed the issue of the sub-division and the transfer and said they were of no effect.

26. The Counsel for the respondents has urged the court to find that the application dated 4/3/2021 is res judicata. The principle of res judicata is that a court of law cannot entertain a matter which it has heard and determined to its finality. The court becomes functus official when it has heard a matter and determined it. In this matter the court revoked the grant issued to M’Ndaka Kangangi. Thereafter the parties entered a consent to have Peter Gitonga M’Amwari as the sole administrator. Justice Gikonyo marked the matter as finalized.

27. I find that the court having revoked and re-issued the grant, it cannot again be called upon to revoke the grant. This would be taking the court in a circus and extending the jurisdiction of the court to revoke the grant too far. The grant herein was issued by consent. There is a procedure for setting aside consent orders which are stringent. This includes proving to court that there was fraud or misrepresentations. The applicant has not laid material before this court to prove that the Counsel had no instructions to represent him. It is also clear from the record that Succession 246/1995 and Succession 251/12 had been consolidated when the grant was conformed. Section 76 a, b & c of the Law of Succession Act lays down the threshold for revocation of grant. It is provided:(a)that the proceedings to obtain the grant were defective insubstance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.”

28. The applicant has not demonstrated these grounds. This court in a ruling dated 19/11/2020 held that the matter was finalized. The court is ‘functus official’. I find that the summons for revocation lacks merits. The ruling by Justice Ouko (as he then was) had conclusively determined the issue of sub-divisions done by the applicant as pointed out above. The court cannot revisit them.

Conclusion: 29. The application is without merits and is dismissed. I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 15TH DAY OF FEBRUARY 2024. L.W. GITARIJUDGE15/2/2024Ms Wanjiku for Mr. Muthomi for ApplicantMs Mutegi or RespondentRuling has been read out in open court.L.W. GITARIJUDGE15/2/2024