[2021] KEHC 9831 (KLR)

Mwinzagu v Abdulaziz (Civil Appeal 31 of 2014) [2021] KEHC 9831 (KLR) (31 August 2021) (Ruling)

Neutral citation: [2021] KEHC 9831 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 31 of 2014

JN Onyiego, J

August 31, 2021

Between

Sheikah M Mohamed Mwinzagu

Applicant

and

Abdul Karim Hassan Abdulaziz

Respondent

Ruling

1. Vide civil case No. 38/2003 filed before the Kadhi’s court Mombasa, Abdul Kadir Abdulaziz (hereafter the respondent) filed a petition against one Sheikh Ali Mohamed Mwinzagu ( hereafter the appellant ) seeking determination of heirs in respect of the estate of Ahmed Mohamed Nabib who died on October 5, 1987 and Aisha Said Nabib who died on October 4, 1988leaving no children nor parents. On January 30, 2008 Kadhi, Hammad M. Kassim delivered his judgment.

2. Aggrieved by the said judgment, Sheikh Ali Mohamed Mwinzangu lodged an appeal No. 17/2008 dated February 11, 2008 against Abdulkahrim Hassan Abdulaziz (respondent). The appeal was later given a new file number No. 31/2014.

3. Unfortunately, the respondent died on January 9, 2016. According to the record, by the time the respondent died, the appeal was pending highlighting of submissions. However, no action was taken till July 28, 2016 when the appellant filed a notice of motion dated July 27, 2016 seeking an injunction against the children of the deceased/ respondent restraining them from dealing with, disposing, alienating or in any manner inter meddling with the subject properties of the estate. He also sought for the appointment of the public trustee to substitute the deceased.

4. On June 7, 2019, Hon Justice Thande dismissed the application stating that, it is only a personal representative of a deceased family who can be made a party to pending proceedings. Further, that an injunction could not issue against unnamed person/s. Subsequently, a notice of motion dated February 24, 2020purportedly filed by the deceased/ respondent seeking dismissal of the appeal for want of prosecution was filed. Unfortunately, the affidavit in support was sworn by the deceased respondent’s counsel one Yusuf M. Abourbakar. The application was nevertheless dismissed on October 22, 2020 for being incompetent and bad in law hence a nullity as the said advocate could not have gotten authority from a person (respondent) who died 4 years earlier to swear the affidavit.

5. On June 19, 2020, the appellant again filed an application dated June 18, 2020seeking orders that Hassan AbdulKadir Ali be substituted as the respondent in this appeal in place of the respondent, Abdulkadir Hassan Abdulaziz (deceased). The application is based on the ground that, the said Hassan Adbulkadir Ali is the grantee of letters of administration Ad litem of all the estate of the respondent, Abdulkadir Hassan Abdulazis (deceased).

6. The application is supported by an affidavit sworn on June 18, 2020 by the appellant who annexed a copy of the grant of letters of administration ad litem issued to Hassan Abdul Ali the proposed respondent. That it is only fair and just that the administrator of the estate of the deceased respondent be substituted so as to pursue the appeal which is only pending highlighting of submissions.

7. In response, the respondent filed grounds of opposition dated September 8, 2020 claiming that;(a)There is a pending ruling for a notice of motion application dated February 24, 2020 which sought the dismissal of the appeal herein for want of prosecution and whose outcome has a direct bearing on this application.b.The application herein is an afterthought provoked by the respondent’s application dated February 24, 2020. c.The time within which this application ought to be filed under order 42 rule 35 and order 24 rule 4(3) of the Civil Procedure Rules 2010 has lapsed and thus the application is incompetent and bad in law.d.This application offends the overriding objectives of the law under sections 1 A and 1B of the Civil Procedure Act chapter 21 of the Laws of Kenya and article 159 (2)(d) of the Constitution on the principles of hearing matters without undue delay.

8. The application was canvassed in open court by both Counsel submitting orally. Mr Mulisho for the appellant /applicant reiterated the content contained in the affidavit in support of the application while urging that the intended respondent is a son to the deceased/respondent who is the personal legal representative of the estate of the deceased/respondent. That the appeal has been filed in compliance with the directions of the court in its ruling ofJune 7, 2019.

9. On his part, Mr Aboubakar opposed the application terming it as bad in law as it is filed under rule 49 which is not applicable in this case. According to counsel, the application ought to have been brought under order 24 of the Civil Procedure Rules pursuant to rule 63 of the Probate and Administration rules. That the application was filed outside the statutory limitation period of one year. Learned counsel opined that this is an old matter which ought to be dismissed under order 42 rule 35 of the Civil Procedure Rules as no action was taken within one year to prosecute the application. That the court ought to promote the oxygen provisions on expeditious delivery of justice.

Analysis and determination. 10. I have considered the application herein, affidavit in support, grounds of opposition and oral submissions by both counsel. The application herein has been pending since 2008 when it was lodged. However, the same hit a rock while pending highlighting submissions following the death of the respondent on January 9, 2016. Thereafter, a series of applications and counter applications ensued.

11. In one of the applications dated July 27, 2016the applicant sought the appointment of the public trustee in place of the deceased/respondent. However, the court dismissed the same on June 7, 2019on the ground among others that the appellant ought to have sought appointment of a personal representative of the deceased’s estate.

12. Before I proceed to the core of the application, I wish to correct and clarify on one issue raised in the grounds of opposition. The first ground of opposition is that there is a pending application dated February 24, 2020thus making the instant application incompetent. The said application was disposed of through a ruling dated October 22, 2020. This fact was also later acknowledged by both counsel. To that extent, that ground is not sustainable.

13. The application herein has been brought under general summons without quoting any specific provision. The applicant is seeking appointment of the respondent in this application in place of the deceased/respondent. Under the Law of Succession, there is no express provision and elaborate procedure provided on how to substitute a deceased litigant similar to order 24 of the Civil Procedure Rules governing ordinary civil cases.

14. I do not agree with Mr Aboubakar’s argument that the application ought to have been brought underorder 24 of the Civil Procedure Rules. This is because order 24 of the Civil Procedure Rules is not among the provisions stipulated under Rule 63 (1) of the Probate and Administration Rules of the Law of Succession which provides;“Save as in the Act or in these rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rulesnamely, orders V, X, XI, XVIII, XXV, XLIV and XLIX together with the High Court (practice and procedure) Rules, shall apply so for as relevant to proceedings under these rules”.

15. From the above quoted provision, order 24 of the Civil Procedure Rules does not apply hence Mr Aboubarkar’s submission is not correct in the circumstances of this case. Which provision is applicable in a case of this nature?

16. As correctly observed by my sister Thande J in her ruling of June 7, 2019, the appropriate procedure in substituting a deceased litigant or party in a succession related proceedings is the 5th schedule rule 14 of the Law of Succession Act which provides;“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in the suit, limited for the purpose of representing the deceased therein, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties touching the matter at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution”.

17. Although the application does not specify the provision under which it was brought, failure to quote the correct or relevant provision is not fatal hence curable under article 159 (2)(d) of the Constitution which provides that courts shall determine cases without undue regard to technicalities. Besides, under Section 47 of the Law of Succession and rule 73 of the Probate and Administration rules, the high court has wide discretionary powers to determine any application and make any orders in a succession case for purposes of meeting the ends of justice. See Gatu vs Muriuki (1986) KLR at page 212 where Apollo JA stated that;“This application could only properly be brought under order 9 (8) of the high court civil procedure rules. However, when the appellant brought the application, he erroneously put down as the authority on which he sought his relief order XLIV rule 3 and order VI rule 3. They were quite wrong. The learned Judge seeming to have had great stress on the fact that although it was a competent application, the wrong procedure warrant was cited for it.”

18. The Honourable Judge went further to state as follows;“Although I am not now concerned with the merits, I cannot shut my eyes to the fact that the main ground on which the learned judge declined to exercise his discretion to set aside the judgment of dismissal was that in bringing the motion to relist, the applicant in error, quoted the wrong order. That seems to me hardly a sound basis for dismissing the motion”.

19. Similar position was held in the case of Wangari Gichuki vs Daniel Wanjigo Muchemi (2014) eKLRwhere the court held that;“I hold that the failure of the applicant herein to follow the right form and refer to the correct section and rules cannot be a basis to deny her a hearing and determination of her application on merit”.

20. In view of the above cited authorities, failure to specifically quote the law or quoting the wrong provision under which an application is brought is not fatal. What counts is the attainment of substantive justice and not want of form.

21. Further, in the re Estate of Mukita Muringo (deceased)2017) e KLR and Re Estate of Omar Abdalla Taib(2017)eKLR both courts agreed that the applicable law in substitution of parties in succession cases is the 5th schedule rule 14 and that order 24 does not apply hence the issue of abatement of the suit is irreverent. In any event, time limitation in succession matters is not strictly provided for in the law.

22. In succession cases, section 47 and rule 73 of the Probate and Administration Rules of the Law of Succession Act are saving clauses when it comes to non-strict adherence to want of form in filing an application.

23. Since the intended respondent has also taken out a grant of letters of administration in respect of the deceased respondent’s estate, it is prudent to bring him on board as a personal representative of the deceased/respondent and therefore expedite the disposal of the appeal without delay. He is the suitable person in these proceedings.

24. Therefore, under rule 14 of the 5th schedule of the law of succession, this court is inclined to substitute the deceased/respondent with his son Hassan Abdul Azis as the respondent.

25. Concerning Mr Aboubakar’s submission seeking dismissal of the suit under order 42 (35) of the Civil Procedure Rules, there is no application before me seeking such orders. In any event, the application dated February 24, 2020 seeking similar orders was dismissed. Counsel cannot seek such orders through submissions without a substantive application.

26. Accordingly, having taken into consideration the legal provisions cited herein above and case law, I am persuaded to find that the application is merited and therefore allowed as prayed. Parties to appear before this court on September 16, 2020 for directions on highlighting of the pending submissions. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 31STDAY OF AUGUST, 2021. …………………..J. N.ONYIEGOJUDGE