[2023] KEHC 25249 (KLR)

In re Estate of the Late Simeon Kamau Kaura (Succession Cause 218 of 1997) [2023] KEHC 25249 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25249 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 218 of 1997

RN Nyakundi, J

November 15, 2023

IN THE MATTER OF ESTATE OF THE LATE SIMEON KAMAU KAURA

Between

Anne Wanjiru Kamau

Petitioner

and

Tabitha Mbukii Mburu & 4 others

Respondent

Ruling

1. The applicant/administrator filed this application expressed to be brought under Section 47 of the Law of Succession Act Rule 73 of the Probate and Administration Rules Order 45 Rule1 and 2 of the Civil Procedure Rules, 2010 and all enabling provisions. The orders so applied for comprise of the following:1. This Honourable Court be pleased to grant leave to the Administrator/Applicant to file the instant application in the interest of justice.2. This Honourable court be pleased to review/vary the order made on 9th October 2023 and more particularly order number 7 thereof to read as follows:“7the beneficiaries to comply in meeting their part of the bargain in paying up Kshs 261,089/= each being their respective share of the pending bill on account of surveyor’s fees balance, Land Rent, Lessees Registration, county land rates, legal fees, conveyance fees and reimbursement of the Administrator’s extra contribution (all totaling to Kshs 1,566, 534, 65/=. The payment to be made through the Administrator’s Bank Account Name. Anne Wanjiru ,Account Number xxxx Equity Bank, Eldoret Brach as per the minutes/resolutions of the beneficiaries meeting held on 18th December 2022 and which was filed in court on 15/2/2023. 3.There be no orders as to costs of this application.

2. The application is grounded on the strength of the following reasons:1. The honorable court made an order dated 9th October, 2023wheein in order number 7 the court directed the beneficiaries to comply by paying up the surveyor’s fees but the order did not capture other pending bills on account of land rent county land Rates, Lease Registration, Legal fees, Conveyance fees and reimbursement of Administrators extra contribution (all totaling to Kshs 1,5666, 534. 65).2. In the resolution of the beneficiaries meeting held on 18th December 2022 which was filed in court on 15th February 2023 the pending bill totals to kshs 1,566,534. 65/- (all inclusive) for which each beneficiary is required to pay their respective shares in the sum of Kshs 261,089. 11/=on account of surveyor’s fees balance, land rent, leases, registration, county land rates, legal fees, conveyance fees and reimbursement of administrator’s extra contribution.3. The beneficiaries are required to pay their share in pending bills through the administrator’s bank account thus: Account Name ‘Anne Wanjiru, Account Number -xxxx Equity Bank Eldoret Branch.4. There is an apparent error/mistake on the face of order number 7 in the order made on 9th October 2023 as the same only captured the surveyor’s fees and did not capture other pending bills totaling to kshs 21,566,534. 65/=(all inclusive)5. The Estate did not set aside/reserve a portion of the property for sale to cater for pending bill hence the beneficiaries are to pay their respective shares as per the meeting/resolution of the beneficiaries meeting held on 18th December, 20226. That its therefore pertinent and in the interest of justice for the court to review /vary order number 7 in the order made on 9th October 2023 to include all pending bills to facilitate the completion of the registration of leased and issuance of titles to the beneficiaries7. The application has merits and is made in good faith8. This Honourable Court has unfettered powers and discretion to review/vary order number 7 in the order made on 9th October,2023

3. In addition is an administrator’s Anne Wanjiru’s affidavit dated the same day buttressing the summons for review dated 12th October, 2023. In paragraph 2, 3 4 & 5 she deposes as follows:1. That On 9th October, 2023 this court made an order wherein in order number 7 the court directed the beneficiaries to comply by paying up surveyor’s fees but the order did not capture payment of the pending bill on account of land rent county land rates, lease, registration, legal fees, conveyance fees and reimbursement of administrators extra contribution (all totaling to Kshs 1,566, 534. 65/=) (Annexed copy of the court order marked AW12. That in the minutes/resolutions of the beneficiaries meeting held on 18th December 2022 it was confirmed that the pending bill total kshs 1,566, 534. 65/= and each beneficiary is required to pay Kshs 261,089. 11/= on account of surveyor’s fees balance, land rent leases registration, county land rates, legal fees, conveyance fees and reimbursement of the Administrator’s extra contribution (Annexed copy of the minutes/resolutions filed in court on 15th February, 2023 marked AW2)3. That There is an apparent error/mistaken in order number 7 as it only captured the surveyor fees and did not capture all the pending bills amounting to kshs 1,566,534 (all inclusive)4. That it is therefore necessary and in the interest of justice for this Honourable court to review/vary order number 7.

4. Initially on 27th March, 2020 Evanson Kimani and Tabitha Mbukii Mburu swore and affidavit surrounding the same circumstances like the present summons for review by the administrator. Their joint affidavit on oath stated as follows:1. That On 8/3/2021 Hon. Justice S.M Githua issued an order at clause 10 to the effect that the beneficiaries who have not paid the processing fees of Kshs 150,000 to do so to ease the process to avoid further delay, if they don’t the court will look for ways in which their entitlement in the estate can raise the same (attached herein is a copy of the order dated 8/3/2021 marked A)2. That based on the said order dated 8/3/2021Tabith Mbuki Mburu Beatrice Wangui Kamau and children of the late Mary Njeri Kamau all paid the requisite kshs 150,000 as directed by the court.3. That from the foregoing, what was pending was the land rates and land rent.4. The attachment daed30/1/2023 is not reflecting true and correct position since the 150,000 payable by each beneficiary was to cover the lease registration and surveyors balance (attached herein is a letter by the surveyor dated 17/6/2016 marked B)5. That the said attachment has not reflected that there is a pending bill of Kshs 92,000for land rates and as at 20. 3.23 the same was cleared by Tabitha Mbuki Mburu, Beatrice Wangui Kamau and estate of Mary Njeri Kamau (through her children) (attached herein is the receipt dated20/3/2023markdedCJ6. That Tabitha Mbuki Mburu, Beatrice Wangui Kamau and the estate of Mary Njeri Kamau (through her children) are planning on clearing the land rent of kshs 170,000 and a receipt will be provided to court in due course7. That the beneficiaries are on the view that each of them will process their respective title documents once the lease have been released by the surveyor thus the amount of Kshs 600,000 should not be demanded for

Decision 4. I have considered all the above evidential material the ruling by Justice Azangalala dated 18th day of June, 2012 the Judgement by Kimondo J dated 18th day of November, 2014 and his further ruling dated 5th day of June, 2015, subsequent interim decisions by Githinji J and this court’s ruling dated 15th February, 2022. Although all of these decisions have been addressing the plight of the beneficiaries in one way or another none is ready to let go the court to take possession of their rightful shares to the intestate estate.

5. In terms of protecting a party’s legal rights to a litigation in review jurisdiction the safeguards of the law are to be found in Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules. The law is crystal clear that an aggrieved party to a ruling or order or judgement can only impeach it under review jurisdiction if the following conditions are met:1. That there is discovery of new and important evidence which was not available to the Applicant when the judgment or order was passed despite having exercised due diligence or2. That there was a mistake or error apparent on the face of the records, or3. That sufficient reasons exist to warrant the review sought4. In addition to proving the existence of the above grounds, the Applicant must also demonstrate that the application was filed without unreasonable delay.

6. This court is being told that there was an error of material fact which has now been established regarding the payment of the surveyors fees and other incidentals arising out of the administration of the estate that should be included in the new ruling expected of the court. It is clear that the administrator is seeking enhancement of the initial order upon each of the beneficiary to pay Kshs 261,089/= to an incremental amount to a total sum of Kshs 1,566, 534. 65/=. Indeed the strong ground here under Order 45(1) of the CPR is for an order by Githinji J to be reviewed for reasons of discovery of new evidence by the administrator. What is the threshold as established by case law? In Rose Kaiza –vs- Angelo Mpanjuiza (2009) eKLR where the court of Appeal considered an application for review on ground of new evidence and held that:“ Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”

7. In the persuasive authority in R (Alcombury Development Ltd.) vs Secretary of State for Environment, transport the Regions (2003)2 AC 295 para 53 laid down the new position in this dictum: “ the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory context where the parties share an interest co-operating to achieve the correct result…without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are first, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been established, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive)part in the tribunal’s reasoning.

8. This is an application for review based on discovery of fresh evidence which touches on estate expenses. First it must be shown but the evidence could not have been obtained with reasonable diligence for use at the trial by Githinji J. There is no such cogent evidence in the affidavit by the Applicant. What the court is being asked to do is to make an order for fund raising expenses by each of the beneficiaries presumably as a condition by the administrator to transmit their rightful shares as distributed in the certificate of the confirmed grant. A prima facie case of willful abuse of the court process exist between the beneficiaries under the rubric of agitating of some legitimate claims. A summary of the decisions made by this court bears me witness that exercise of judicial discretion has been properly exercised to meet the interests of the justice of the case. A casual look at the application seeking to admit additional evidence could have been in possession of the administrators since the petition was filed either in 1997 or when Githinji J made their order as regards contribution by each of the beneficiary as a condition for their titles to be processed. By introducing that evidence the applicants/administrator are contributing to a further delay of the transmission of the estate. Ideally this is a succession cause which should not be entertained by this court for reason of being vexatious and instituted not to pursue justice but to achieve a wrongful purpose. What the administrator is not aware when I read her affidavit are the provisions of Section 83 of the Succession Act. The court in Re-estate of Julius Mimano (Deceased) (2019)eKLR where Musyoka J observed that:“…………….section 83 of the Act has imposed a positive duty on personal representatives to specifically render accounts at two stages. The first instance is in the first six months of the administration. It is at this stage that they ought to account as to whether the spent any funds from the estate for the purpose of disposing the remains of the deceased and, if so, how much. State whether they got in or gathered or collected or brought together all the assets that make up the estate. The getting in of the estate is critical, it should precede settlement of debts and liabilities and distribution of the assets. Indeed, these duties can only be discharged if there are assets sufficient to settle debts leaving a surplus for distribution. It would also be from the assets collected that the estate would have a pool of resources for administration expenses. Section 83(e)commands the personal representatives to produce in court a full and accurate inventory of the assets and liabilities, no doubt generated from the exercise of getting in the assets and ascertaining the debts of the estate. There is also an obligation to render an account of all their dealings with the assets and liabilities up to the point of the account. The second occasion for rendering accounts is at the completion of administration. The duty is stated in section 83(g) of the Act. The object of the second and final account is to give opportunity to the personal representative to demonstrate that they have complied with the duty in section 83(f) of distribution of the estate to the beneficiaries.”

9. The main features of the proposed scheme on estate expenses is covered by Section 83 of the Succession Act. The key challenges expressed by the administrator are tools covered by Section 83 of the Act with proper safeguards within the legal and regulatory framework in the Succession Act read purposefully as a whole. What measures are taken is for the administrator to be guided by the spirit of the law as enacted by the legislature.

10. The review application as stipulated in the summons dated 12th October, 2023 lacks merit. I would with respect question whether the beneficiaries are right in litigating and re-litigating before this court on the same subject matter expressed in different words and languages so as to keep the court busy and for them to take the crown home that nothing works in our legal system. I would disagree that the change of the estate expenses prayed for of 1. 56 million can entitle the beneficiaries to exit the litigation stage to go home and enjoy the heritage survived of the deceased. I can readily foresee that the applicant would in this circumstances feel that the decision to deny her the review orders is unjust but it is my advise that she converts this sense of injustice into an enforceable legal right of fulfilling her covenants as expressed in Section 83 of the operative Act on succession matters. One is forced to ask the question what benefit would accrue to a beneficiary by having to litigate where neither the subject matter is in dispute under Section 3 of the succession Act nor the identity of the dependents in Section 29 of the same Act. From the Courts point of view, the situation of the successive retrials by the beneficiaries is indeed frowned upon by Section 7 of the Civil Procedure Act on res-judicata.

11. Speaking broadly, the rule of res judicata means that when a court of competent jurisdiction has determined, on its merits, a litigated cause, the judgment entered, until reversed, is forever and under all circumstances, final and conclusive as between the parties to the suit and their privies in respect to every fact which has been properly considered by an independent judicial forum with a decision on the merits. The summons having been built on sinking sand is lost with no orders as to costs.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 15TH DAY OF NOVEMBER, 2023In the presenceMr. Rotich for the ApplicantMr. Oduor for the ………………………………R. NYAKUNDIJUDGE