ERO & another v MWS & 2 others; Standard Gauge Railway & 6 others (Interested Parties) [2022] KEHC 11900 (KLR)

ERO & another v MWS & 2 others; Standard Gauge Railway & 6 others (Interested Parties) (Succession Cause 53A of 2017) [2022] KEHC 11900 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11900 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause 53A of 2017

SN Mutuku, J

May 11, 2022

Between

ERO

1st Applicant

GNS

2nd Applicant

and

MWS

1st Respondent

Saitabao Simel Sane

2nd Respondent

Saningo Sane Sime

3rd Respondent

and

Standard Gauge Railway

Interested Party

Clementine Nashipae Sane

Interested Party

Nyakamba Gekara

Interested Party

Angela Milano Sane

Interested Party

Mani Lemaiyan

Interested Party

Geoffrey Waweru

Interested Party

Jeremire Masagate Araka

Interested Party

Ruling

1. This Ruling relates to a Summons (the Application) dated July 30, 2021 brought by Jeremire Masagate Araka, the Intended Interested Party, pursuant to Article 22 and 159(2) of the Constitutionof Kenya, Rule 49 of the Probate And Administration Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 10(2) of the Civil Procedure Rules. The Application seeks orders that;i.That the Honourable court be pleased to certify this matter as extremely urgent, service be dispensed with in the first instance.ii.That the Honourable Court be pleased to grant leave to the Applicant herein Jeremire Masagate Araka to be enjoined as an interested party in these proceedings.iii.This Honourable court be pleased to issue any such orders it may deem fit and convenient in the circumstances of this matter.

2. The grounds in support of the Application are found on the face of it and in the Affidavit sworn by Jeremire Masagate Araka on July 30, 2021. He has stated that he is the second surety in this matter as shown in the Affidavit of Justification of Proposed Sureties dated July 20, 2017. That he knew the late Livingstone Simel Sane since 1975 during their college days. That in June 2017, the widow to the deceased, now a principal Administrator, informed him that the deceased had given instructions for him to act as one of the proposed sureties in the process of administration of his estate.

3. It is contention that he was informed that the value of the property for which he would be surety was the sum of Kenya shillings Two Hundred and Fifty Million (250,000,000). That sometime in June 2017, the 2nd Respondent/Administrator brought Form 11 to his house for signature showing the sum of Kshs 250,000,000 and not Kshs 35,000,000 as per the Affidavit of Justification of Proposed Sureties. He denied attesting the said document before or in the presence of Tom O. Achillah A Commissioner for Oaths /Magistrate on July 20th 2021 as alleged in the Affidavit of Justification of Proposed Sureties.

4. He states that his signature therein is therefore a fraudulent imitation. He states that the value of all the properties of the estate is in excess of Kenya shillings Three Billion (3,000,000,000) and not the said Kshs 250,000,000 or the Kshs 35,000,000 indicated in the Affidavit of Justification of Proposed Sureties filed in court. That he was misled by the principal administrator into signing a transaction which they knew or believed to be false. That he was never informed of any further transactions leading to the distribution of the estate that gave rise to Certificate of Confirmation of Grant by the High Court at Kajiado on April, 30th, 2019.

Submissions 5. Through directions of this court, parties filed written submissions. The Applicants/Beneficiaries did not object to the application and therefore did not file submissions. The Intended Interested party filed his submissions dated November 26, 2021. He reiterated the contents of his application and supporting affidavit.

6. He has submitted that if his application is not heard and determined there exists a risk that his reputation and status, as well as that of other beneficiaries, will suffer on account of swearing a false statement as to the value of the estate. He cited Section 83 (e) and (h) of the Law of Succession Act, Order 1 Rule 25 of the Civil Procedure Rules and Rule 5(d)(ii) of the Mutunga Rules on the issue of joinder of parties.

7. It was his argument that the elements to be satisfied where a party seeks to be enjoined in proceedings as an interested party are that the intended interested party must have an “identifiable” stake, or legal interest and/or duty in the proceedings; that he has an identifiable stake by virtue of him being a surety, and that he has a legal interest because the administrators misrepresented the estate of the deceased to him. He quoted various cases to support his case including the Supreme court decision in the case of Trusted Society of Human Rights Alliance -Versus- Mumo Matemu [2014] eKLR.

8. The Respondents filed their submissions dated January 7, 2022. They identified three issues for determination: whether the joinder/non-joinder will assist the court in the effective and effectual determination of all questions arising in the suit.

9. On this issue, they relied on Order 41 Rule 5 of the Civil Procedure Rules, the Mutunga Rules andthe Constitutionof Kenya (Protection of Rights, Fundamental Freedoms) Practice and Procedure Rules, Legal Notice No117 of 2013. They further relied on the case ofFrancis Karioki Muruatetu & Another -v- Republic & others [2016] eKLR where the court stated applicable elements where a party seeks to be enjoined in proceedings as an interested party. They also relied on the case ofTrusted Society of Human Rights Alliance -Versus- Mumo Matemu & 5 others [2015] eKLR.

10. It was their submissions that the Applicant has not met the elements that are applicable where a party seeks to be enjoined in the proceedings and on this basis the court should not allow the Applicant to be enjoined as interested party.

11. The second issue identified was whether the party sought to be joined or removed has any identifiable stake, legal interest or duty in the proceedings. On this issue, they relied on the cases of Meme-v- Republic [2004] 1EA 124 and SKOV Estate Limited & 5 others -v- Agricultural Development Corporation & Another. It was their argument that the Applicant has not demonstrated his necessity to the proceedings as an interested party neither does he have stake in the estate herein as he is not a beneficiary but a surety. Further that if the Applicant feels there exists conceivable risk that he will be affected by the administrators he should make an application to be discharged as a surety and not to be enjoined as an interested party to the proceedings.

12. The third issue identified is what is the role of a surety in a succession cause. They cited the case ofre Estate of JMW (deceased) (2017) eKLR, where the court stated that:“The requirement for surety in succession causes is basically to serve as guarantors for purposes of indemnifying the estate in the event of false information and therefore loss or wastage occasioned to the estate by the persons guaranteed as petitioners.”

13. It was their submissions that the threshold for enjoinment has not been met and they have further sought this courts leave to substitute him as a surety in this cause.

Determination 14. The Law of Succession Act has its own provisions on how to deal with some of the issues. Under Rule 63 of theProbate and Administration Rules, it is specified which Rules of Civil Procedure are applicable in succession matters. The Rule reads as follows:63. Application of Civil Procedure Rulesand High Court (Practice and Procedure) Rules:(1)Save as it in the Act or in these Rules otherwise provided, and subject to any order or the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 together with the High Court (Practice and Procedure) Rules shall apply so far as relevant to proceedings under these Rules.

15. It is clear therefore that Order 1 Rule 10(2) of the Civil Procedure Rules, on joinder on non-joinder of parties, is not one of the applicable Civil Procedure Rules under Rule 63 of the Probate and Administration Rules. How then do parties who wish to be enjoined in any Succession proceedings do so? In my view, the provisions of Rule 73 of the Probate and Administration Rules gives such parties relief. This Rule provides that:“Nothing 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.”

16. In my considered view, this court is clothed with the necessary power under Rule 73 of theProbate and Administration Rules to make such orders as may be necessary to the ends of justice to be bet or to prevent abuse of the process of the court. To allow or to decline an application for joinder of parties is one such order meant to ensure that ends of justice are met. To grant or to decline such an application will depend on the party seeking such an order satisfying the court that they so deserve such an order.

17. The question to be answered is whether the Intended Interested Party is justified in bringing this application. In the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] e KLR, the Supreme Court defined an interested party as follows:“An interested party is one who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or herself appears in the proceedings, and champions his or her cause.”

18. The guiding principles encompassing the enjoinment of an interested party to a suit were articulated by the Supreme Court in the decision of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae)[2017] eKLR with reference to Francis Karioki Muruatetu & Another v Republic & 5 othersPetition 15 as consolidated with 16 of 2013 [2016] eKLR, and are as follows:“One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:(i)The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.(ii)The prejudice to be suffered by the intended interested party in case of non-joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.iv.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”

19. To my mind Rule 29 of theProbate and Administration Rulesis relevant to this case. Under Rule 29 (3) and (4) it is provided that:(3)As a condition of granting letters of administration (whether with or without the will annexed) the court may, for reasons to be recorded and subject to the following provisions of this rule, require one or more sureties to guarantee that they will make good, within any of the surety or sureties, any loss which any person interested in the administration of the estate of the deceased may suffer in consequences of a breach by the administrator of his duties as such. (emphasis mine).(4)A guarantee given in pursuance of any such requirement shall take effect for the benefit of every person interested in the administration of the estate of the deceased as if contained in a contract under seal made by the surety or sureties with every such person and, where there are two or more sureties, as if they had bound themselves jointly and severally.

20. I have understood the fears expressed by the Intended Interested Party. His case is that he wants to be enjoined in these proceedings because he was misled by the principal administrators into assenting to a transaction which was utterly false. It was his contention that the Affidavit of Justification of Proposed Sureties filed in court did not reflect the true value of the estate, which value was is in excess of Kshs Three Billion (3,000,000,000) and not even the said Kshs 250,000,000 or the Kshs 35,000,000,000 suggested in the Affidavit of Proposed Sureties filed in court.

21. He seeks to be enjoined as he has demonstrated that he has an identifiable stake by virtue of him being a surety, has a legal interest as the administrators misrepresented the estate of the deceased to the surety as their guarantor and their duty would be to provide a truthful and factual representation on the size of the estate of the deceased.

22. My considered view, given the provisions of Rule 29 cited above, and the role of a surety as expressed in that Rule, I am persuaded that the Intended Interested Party has a state and a legal interest in this Cause. He has a legal duty to make good, within any of the surety or sureties, any loss which any person interested in the administration of the estate of the deceased may suffer in consequence of a breach by the administrator of his duties as such surety.

23. After careful consideration of the opposing views expressed by the Intended Interested Party and the Respondent, as well as the rival submissions, the cited authorities and the law, it is my considered view that the Intended Interested Party has demonstrated he has a stake and a legal interest in these proceedings by virtue of his being one of the sureties in this estate. I will and do hereby allow the Summons dated July 30, 2021 to the effect that the Jeremire Masagate Araka is hereby granted leave to be enjoined in these proceedings as an Interested Party.

24. Due to the nature of these proceedings, I order that each party bears own costs in this application.

25. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 11THMAY 2022. S. N. MUTUTKUJUDGE