[2023] KEHC 27304 (KLR)

Meoli & 3 others v Meoli & 3 others (Succession Cause E014 of 2022) [2023] KEHC 27304 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27304 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause E014 of 2022

SN Mutuku, J

December 13, 2023

Between

Joyce Milanoi Meoli

1st Citor

Raphael Nzioka Kiluva

2nd Citor

Jeanne Mutheu Kiluva

3rd Citor

Allan Mutei Kiluva

4th Citor

and

Margaret M. Meoli

1st Citee

Stephen Lukeine Meoli

2nd Citee

Thomas Meritei Meoli

3rd Citee

Grace Tanyasis Kakenia

4th Citee

Ruling

Background 1. The Citors herein filed before this Court a Citation dated 6th June 2022 seeking to direct the Citees to take up letters of administration in respect of the Estate of late Gabriel Ntetia Meoli (deceased). The citation was withdrawn upon learning that the Citees had obtained a grant of letters of administration in Machakos High Court and that the same had been confirmed. The Citors sought to be paid costs from the Citees because the Citees had failed to engage them while taking out the letters of administration.

2. The Citees opposed this arguing that the same is misguided as the Citors are the ones who have taken them to court and therefore they should be the ones paid costs.

Affidavits 3. This Honorable Court, on 2nd March 2023, directed the parties to file brief submissions on the issue of costs. This Ruling addresses that issue.

4. The Citors filed a Supplementary Affidavit dated 17th April 2023 with leave of the court. The affidavit is sworn by Joyce Milanoi Meoli who has stated that she is a beneficiary of the estate of the deceased. That they wrote to the Citees through a letter dated 24th January, 2022 enquiring as to the status of administration of the estate. That the said letter was not responded to by the Citees and that the failure and/or refusal of the Citees to supply them with information forced them to file this Citation. It is for this reason that they are seeking costs for filing the citation.

5. The Citees through a Replying Affidavit sworn by Thomas Meritei Meoli responded to the Citors Supplementary Affidavit and stated that the supplementary affidavit by the Citors contains false information in that the alleged letter was never served upon them; that the same is an afterthought meant to mislead this Court; that no affidavit of service was produced to show that service was effected; that the affidavit lacked merit as they were never called upon by any means to respond to the Citors before they rushed to court to file the defective suit and that they had to engage an advocate at a cost to defend the suit.

Partys’ Submissions 6. The Citors filed their submissions dated 17th April 2023. They have raised one issue for determination: who should bear the cost of this Citation? They cited Rule 7(7) of the Probate and Administration which provides that:Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—(a)renounced his right generally to apply for a grant; or(b)consented in writing to the making of the grant to the applicant; or(c)been issued with a citation calling upon him either to renounce such right or to apply for a grant.

7. It is their case that the 1st , 2nd , 3rd and 4th Citees are the widow, sons and daughter of the deceased and hence form the first order of preference to take out letters of administration but due to non-disclosure even after information was expressly sought on the status of the administration of the estate, the Citors filed the Citation first.

8. They state that Rule 26(1) of the Probate and Administration rules provide that “letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority of the applicant.”

9. It was their case that the Citees did not comply with the above provisions and that they have been greatly prejudiced by the actions of the Citees of leaving them out. They submitted that they wrote a letter dated 24th February, 2022 as stated in their supplementary affidavit but this letter was never responded to. That the Citees ought to be made to pay the costs of the Citation for non- disclosure of the status of the administration of the estate which forced them to file the Citation.

10. It was their case that the Citees have approached this court with unclean hands in seeking for costs for withdrawing the Citation; that the Citees cannot refuse to comply with their obligation and further seek to benefit from the non-disclosure. They cited Morgan Air Cargo Limited v Evrest Enterprises Limited [2014] eKLR where it was stated that:“The law of costs as it is understood by the courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributable to him, which would induce the court to deprive him of his costs – the court has no discretion and cannot take away the plaintiff’s right to cost. If the Defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course.”

11. They submitted that the actions of being denied information sought amounted to their being denied their legal right; that the filing of the Citation achieved its purpose as they got the information they required on the status of the letters of administration; that they are therefore the successful parties under the citation. They argued that costs follow the event and cited section 27 of the Civil Procedure Act which provides that:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers.

12. They also cited Peter Muriuki Ngure v Equity Bank(k) Ltd [2018] eKLR where the court held that:“It is quite clear therefore that the key word in this Section is “event”. As stated in the submissions by the Respondent, this word has been addressed in the Judicial hints on Civil Procedure by Justice (Rtd) Kuloba as follows:“The words “the event” mean the result of all the proceedings to the litigation. The event is the result of entire litigation. It is clear however, that the word “event” is to be regarded as a collective noun and is to be read distinctively so that in fact it may mean the “events” of separate issues in an action. Thus, the expression “the costs shall follow the event” means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it. An issue in this sense need not go to the whole cause of action but includes any issue which has a direct and definite even in defeating the claim to judgment in the whole or in part”.

Citees Submissions 13. The Citees submissions are dated 22nd June, 2023. They also submitted on the issue: who should bear the cost of the Citation. They submitted that Order 25 rule 1 and 2 of the Civil Procedure Rules provide that:At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.(1)Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties.(2)Where a suit has been set down for hearing the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.(3)The provisions of this rule and rule 1 shall apply to counterclaims.

14. They submitted that by virtue of section 27 of the Civil Procedure Act, it is trite law that the issue of cost is a discretionary award that is awarded to a successful party. They relied on case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] eKLR which cited with approval the words of Murray C J in Levben Products v Alexander Films (SA) (PTY) Ltd 1957(4)(SA 225 (SR) at 227 that:“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter which the trial judge is given discretion….But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at …..in the second place the general rule that costs should be awarded to a successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”

15. They also relied on section 27 of the Civil Procedure Act and Rtd Justice Richard Kuloba in his book: Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 where the words “the event” means the result of all the proceedings incidental to litigation. They relied on various cases including Republic v Rosemary Wairimu Munene (Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Limited Judicial Review Application NO 6 of 2004 to emphasize the point that granting of costs is discretionary.

16. They submitted that in the instant suit they are the successful parties as upon their response to the citation the Citors retreated therefore conceding defeat. It is their case that no reason has been shown for them to be denied costs as the successful parties to this suit.

Analysis and Determination 17. I have considered this matter. The issue before me is simply that of payment of costs and who should pay.

18. I have read the submissions of all the parties to this matter. Rule 73 of the Probate and Administration Rules clothes this court sitting as Probate and Administration Court, inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. It provides that:73. Saving of inherent powers of courtNothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

19. The issue of costs is discretionary. This is trite and it is recognized by both parties. The Citees have cited Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application No. 6 of 2014, in which the court held that:“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’

20. For the Probate and Administration Causes, this court has unfettered discretion, exercised under Rule 73 cited above, to make orders for ends of justice and to prevent abuse of court process. I believe awarding costs is one such act exercised under the inherent powers of this court under that Rule.

21. The Citors moved to this court with a purpose of drawing out the Citees or compelling the Citees to take out letters of administration. It is their case that they did not have knowledge that the Citees had moved to Machakos High Court and obtained a grant and had it confirmed. That is a reasonable explanation. I doubt that the Citors would have moved to court and filed the Citation had they known that the Citees had moved the court in Machakos.

22. I have noted that the Citees are denying that they received any communication or service from the Citors. What they are not telling the court is whether they had notified the Citors of the Cause filed in Machakos. It is true that the Citors withdrew the Citation upon learning that there is in existence a grant that had been confirmed. That was the wisest thing to do for the Citation served no purposes and had been overtaken by events. From the pleadings and submissions of the parties, the Citors learned through the Replying Affidavit by the Citees that a grant had been obtained.

23. This court is not privy to the matter before the court in Machakos. All it can do is confine itself to the issue before it, who should pay costs. I am satisfied that the Citors have given sufficient reason as to why they filed the Citation in court. I have considered the arguments by the Citees and find them insufficient to persuade this court that they notified the Citors of the matter in Machakos. For this reason, I find in favour of the Citors and order that they be paid costs of moving to court.

24. For avoidance of doubt, the costs payable by the Citees to the Citors shall be subjected to taxation through a Bill of Costs to be drawn by the advocate for the Citors.

25. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 13TH DECEMBER 2023. S. N. MUTUKUJUDGE