[2017] KEHC 3782 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO 413 OF 2014

IN THE MATTER OF THE ESTATE OF ASHFORD MBOGO MANENE (DECEASED)

LYDIA KARWITHA MBOGO……………………………….……….……PETITIONER

VERSUS

GERTRUDE KARIMI MBOGO………..…………………….…………1ST OBJECTOR

JEREMIAH MURUNGI MBOGO……….…………………..…… …...2ND OBJECTOR

ZIPPORAH KAGENDO MBOGO………………….………………….3RD OBJECTOR

MARY MUTHONI MBOGO………………………..…………………...4TH OBJECTOR

RULING

Statutory nomination

[1] On 6th February 2017, the court recorded a consent to the effect that all deceased’s gratuity/benefits/payments from the deceased’s employer, the Ministry of Health be paid to the nominee/next of kin of the deceased, i.e. the Petitioner. These funds are held by the Public Trustee. By that consent application dated 14th December 2014 was marked as settled. Subsequently, two applications dated 21st April 2017 and 28th April 2017 were filed. The former application seeks the setting aside the said consent order recorded by court on 6th February 2017. The latter application seeks to stay the former application pending the hearing of the request that the Objectors be committed to civil jail for contempt of court orders issued on 6th February 2017. Reading from the affidavits filed and the issues framed by the advocate for the Objectors, the major question is:

(a) Whether the consent order recorded on 6th February 2017 should be set aside.

Legal threshold

[2] I am aware of the legal threshold of setting aside consent order or judgment to be as was set out in the case of Brooke Bond Liebig (T) Limited vs. Mallya [1975] E.A. that:

“The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani v. Kassam (1952), 19 E.A.C.A. 131, where the following passage from Seton of Judgments and Orders, 7thEdn., Vol. I, p. 124 was approved:

“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court...or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.”

[3] But before I can fully discuss the arguments by the parties and apply the above test,one important matter should be unravelled first, to wit;

(i) Whether there are additional sums of Kshs. 2,700,000 which the Petitioner did not disclose and which monies did not form part of the statutory nomination herein.

[4] I note that the Objector in her affidavit sworn on 21st of April 2017 particularly in paragraphs 7 and 9 stated that the amount disclosed by the Petitioner was Kshs. 1,800,000 yet there were additional sums of Kshs. 2,700,000 held at the office of the administrator general trustee that is not subject of nomination. For the sake of justice, I will afford the objector an opportunity to provide to this court official information and documents to support her claim that a sum of Kshs. 2,700,000 held by the office of the administrator general trustee is not part of the statutory nomination herein. She will provide this information within 7 days of today. I will thereafter determine the two applications in issue within this month. These orders have been made in the interest of justice. It is o ordered.

Dated, signed and delivered in open court at Meru this 10th July, 2017

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F. GIKONYO

JUDGE

In the presence of :

Mr. Mokua advocate for Ndubi advocate for petitioner

Mr. Kibiti advocate for Mr. Kiautha advocate for applicant – absent

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F. GIKONYO

JUDGE