In re Estate of Timothy Mbondo Ndolo (Deceased) [2023] KEHC 26594 (KLR) | Revocation Of Grant | Esheria

In re Estate of Timothy Mbondo Ndolo (Deceased) [2023] KEHC 26594 (KLR)

Full Case Text

In re Estate of Timothy Mbondo Ndolo (Deceased) (Succession Cause 26 of 1984) [2023] KEHC 26594 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26594 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 26 of 1984

MW Muigai, J

December 13, 2023

Between

Mwangangi Ndolo

Objector

and

Rhoda Mbondo

1st Petitioner

Tabitha Mbondo

2nd Petitioner

Ngao Mbondo

3rd Petitioner

Ruling

Background 1. Timothy Mbondo Ndolo died on 11th November,1984.

2. The Gazette Notice dated 26th July,1985, by Senior Resident Magistrate’s Court at Machakos; Succession Cause 26 of 1984 in which Rhoda Mutono Mbondo, Tabitha Mbondo, Mwangangi Ndolo and Daniel Ngao Ndolo, were all listed as administratrix and administrators, respectively of the deceased’s estate.

3. The Grant for Letters of Administration was granted on 11th November,2009 and was issued by the Resident Magistrate Court through the registry on 16th February,1988 to, Rhoda Mutono Mbondo, Tabitha Mbondo and Daniel Ngao Ndolo [omitted Mwangangi Ndolo] as personal representatives of the deceased’s estate to render a just and true account thereof as required by law.

4. The Certificate of Confirmation dated 8th November,1994, High Court of Kenya at Machakos; Rhoda Mutono Mbondo, Tabitha Mbondo and Mwangangi Ndolo [omitted Daniel Ngao Ndolo] were confirmed as personal representatives of the deceased’s estate pursuant to Section 71 (1) and (3) of the Law of Succession Act. The properties were distributed amongst the Administrators.

5. From the court record on 27/9/2002, the Respondent’s advocate informed the Court that the original file could not be traced and an order for reconstruction was issued vide Misc Application 370/2002. The Application to revoke the grant was filed on 19/2/2002. The Replying Affidavit was filed 8/3/2002. Parties appeared in Court on 14/3/2002 and the Court granted orders that Deputy Registrar visits the land and make findings on the ground. Hon LJ Nambuye [as she then was]observed that the Court record was mutilated which amounted to interference with the cause of justice. The matter was referred to Senior Principal Magistrate to investigate allegation and file Report and hand over the matter to CID for investigations.

6. On 6th February,2009 Mwangangi Ndolo filed Power of Attorney appointing Titus M. Mwangangi to represent him in this Succession Cause vide a Misc. Civil Suit Number 206 of 2008. Titus Mutua Mwangangi, son of Mwangangi Ndolo is the Objector/Administrator of the Estate of Mwangangi Ndolo.

7. The Court on 9th February,2009 directed that the Power of Attorney be registered for hearing on 23rd March,2009.

8. On 27th September,2019 Titus Mutua Mwangangi filed Summons dated 26th September,2019 for substitution of Mwangangi Ndolo with his name which was allowed and grant of letters of Administration intestate was issued on 22nd January,2020 by Kemei J to Titus Mutua Mwangangi only.

9. The Court on 10th February,2021 gave orders that that the grant issued on 22nd January,2020 be revoked as the same was issued in error and the grant issued on 16th February,1988 remained/remains in force.

Amended Summons for Revocation of Grant 10. By the Amended summons for revocation of grant dated 4th May,2021 and filed in court on 5th May,2021 brought under Sections 47, 76 and 84 of the Law of Succession Act Cap 160 wherein the Applicant sought inter alia ORDERS THAT:1. Grant of letters of Administration dated 16th February,1988 and confirmed on 8th November,1984 be revoked and/or annulled.2. A Prohibitory Order be issued against the Respondents by themselves, their agents and/or servants restraining them from selling, transferring and dealing, in any manner with land Parcel No. Muthetheni/Kionyweni/77 pending the hearing and determination of the Application inter partes.3. A Prohibitory Order be issued against the Respondents by themselves, their agents and/or servants restraining them from selling, transferring and dealing, in any manner with land Parcel No. Muthetheni/Kionyweni/77 pending the hearing and determination of the main Cause.4. All transfers, registration and title Deeds effected by use of the said grants be cancelled and/or annulled.5. The Administrators do file an inventory accounting for all the assets of the Deceased6. Costs of the Application be provided for.

11. Grounds upon which the application was premised are on the face of the said application.

Supporting Affidavit to the Amended Summons. 12. The Amended application was supported by a Supporting Affidavit dated 4th May,2021 and filed in court on 5th May,2021, Sworn by Titus Mutua Mwangangi the Applicant herein wherein the contents of his contention are on the face of the said affidavit.

COURT RULING 13. This Court in its Ruling dated 25th November,2021noted that the summons was unopposed and no evidence was tendered in rebuttal in effect means that the orders sought are granted. This Court was satisfied that Respondent(s) were duly served as per Affidavit of Service filed in Court. The Court’s verbatim, ordered that:i.Grant of letters of Administration dated 16. 2.1988 and confirmed grant of in 8. 11. 1994 are hereby revoked/annulled.ii.A prohibitory order is hereby issued against the Petitioners/Respondents either by themselves, their agents and/or servants restraining them from selling, transferring, sharing and dealing in any manner with Land Parcel No. Muthetheni/Kionyweni/77. iii.All transfers, Registration and Title Deeds effected on land Parcel No. Muthetheni/Kionyweni/77 are cancelled and/ or/annulled.iv.The Administrators do file an inventory accounting for all assets deceased.v.Each party to bear own costs.

Notice of Motion 14. By a Notice of Motion dated 27th March,2023 and filed in court on 28th March,2023, brought under Article 50 of Kenya Constitution, Rule 73 of the Probate & Administration Rules and Orders 45 Rule 1 & 40 of Civil Procedure Rules 2010, wherein the Applicant sought orders that:1. The court to grant leave to the firm of D.K Githinji & Company to take over the conduct of this matter from R. M Mtatata & Company on behalf of the Applicant.2. A temporary injunction be issued restraining the Respondent herein, his employees, servants, agents, or any other person claiming through him from registering any entries at the Machakos Lands Registry pursuant to the orders of this Court issued on 25th November,2021 or dealing in any other manner whatsoever with Land Title No. Muthetheni/Kionyweni/77 Pending the hearing and determination of this Application inter partes.3. A temporary injunction be issued restraining the Registrar Machakos District Land Registry, his employees, servants, agents, or any other person claiming through them from making any entries pursuant to the orders of this Court issued on 25th November,2021 or dealing in any other manner whatsoever with Land Title No. Muthetheni/Kionyweni/77 pending the hearing and determination of this Application inter- partes.4. The Honorable Court be pleased to review its orders issued on 25th November, 2021. 5.The Honorable Court be pleased to set aside its orders of 25th November,2021 entirely.

15. Grounds upon which this application is based are on the face of the said application.

Supporting Affidavit 16. The application is supported by an affidavit dated 27th March,2023 and filed in court on 28th March,2023, sworn by Daniel Ngao Mbondo Applicant herein wherein he deposed that:a.He had not been aware howsoever about the Summons for substitution dated 26th September, 2019 leading to the grant issued on 22nd January,2020 and later revoked on 10th February,2021. b.He was also not aware of the Amended Summons filed herein on 4th May,2021 that culminated in the Ruling herein dated 25th November,2021; and last he participated in these proceedings was in 1994 when a confirmation of grant was issued as shown in a copy of the same annexed hereto and marked DNM-1c.Thereafter, he proceeded and had the documents of title processed in terms of the said confirmed grant as shown in a true copy of the Green Card annexed hereto and marked DNM-2 and true copies of title Numbers Muthetheni/Kionyweni/12 and Muthetheni/Kionyweni/77 annexed hereto and marked DNM-3 & DNM-4 respectively.d.Matters ended that way and they continued as neighbours to date. The Respondent and himself lived as neighbours together with the rest of the estate.e.He only learnt about the proceedings when on Saturday 11th March,2023 when his younger sister Maria found the case in the Kenya Law Reports Website and printed out and brought a copy to him.f.He was shocked because he had never been served with any proceedings after the issue of the confirmed grant, he has lived peacefully with the Respondent, no entries have been made in the title since they were issued and certainly not even after this Honorable issued its orders of 25th November,2021 annexed hereto are DNM-5 and DNM-6 respectively. No demand has been made upon him as a previous Administrator to file an inventory of the accounting as ordered by court annexed and marked order DMN-7g.He immediately instructed his Advocates on record and they met at the court on 17th March,2023 to peruse the file and get a better understanding of what might have transpired, whereafter he commenced this application.h.Upon perusal of he discovered that the proceedings were being served upon the Firm of R.M Matata & Company who had been his Advocates on record until the issue of the confirmed grant. Earlier he had engaged the Firm of Makau & Company who used to update him on progress regularly. Annexed and marked copy of letter marked as DNM-8i.He had not been in touch with the firm of R.M Matata & Company as far as he knew, the matter had been concluded and that it is possible that the said firm was unable to get in touch with him due to long period.j.He urged the court not to blame him for the mistakes about which he had no notice, and which at best can only be blamed on the Firm of R.M Matata & Company.k.Land Title No. Muthetheni/Kionyweni/12 was ancestral owned by Ndolo Ngao his grandfather, and father to Timothy Mbondo Ndolo (his father) and Mwangangi Ndolo (Respondent’s Father). After his death the property devolved by custom to the two sons the said Timothy Mbondo Ndolo (his father) and Mwangangi Ndolo (Respondent’s Father).l.Land title No. Muthetheni/Kionyweni/77 was purchased jointly by said Timothy Mbondo Ndolo (his father) and Mwangangi Ndolo (Respondent’s Father) and the title document read as such.m.Upon the death of his father, the said Timothy Mbondo Ndolo and upon the advice of Makau Advocates, the following were appointed as Administrators, Rhoda Mutono (wife) Tabitha Mbondo (wife), Mwangangi Ndolo (surviving brother and father of the Respondent) and himself (son) as shown in the Kenya Gazette Notice dated 26th July,1985. (annexed and marked copy Kenya Gazette Notice as DNM-9).n.The grant was confirmed and Titles issued as to allocate two equal portions to the sons, his father’s portion being divided among the two wives. His name is not even in the Title Deed, he is represented by his Mother Rhoda Mutono, likewise, the Respondent was represented by his father Mwangangi Ndolo.o.During their lifetimes the two brothers the said Timothy Mbondo (his father) and Mwangangi Ndolo (the Respondent’s Father) lived alongside each other in peace and harmony, Further, Mwangangi Ndolo never objected to the Gazette Notice aforementioned and never had any issue up and till his death six years ago.p.He is aware that a meeting was held a day after they buried the deceased Timothy Mbondo purportedly discussing the devolution of the property. His father was buried on 21st November,1981. He was present and was not ready to start negotiations about his property even before they finished mourning.q.He was advised by Makau Advocate that the proceedings of that meeting had no legal consequence as the deceased was not present and had left no will and that the devolution of the property would be done under the rule of intestacy and not that meeting.r.It is therefore clear under the law that the agreement had no legal effect whatsoever to the devolution of the deceased property.s.On land title Muthetheni/Kionyweni/63 it is not true that the property is not held by Kyule Ndolo as alleged by the Respondent in his Supporting Affidavit dated 4th May,2021; further while the process of vesting the property in the deceased’s name had been commenced, the property had not been transferred to the deceased and to date it is still registered in the name of the previous owner.t.On the shop at Kionyweni Market Plot No. 2, it was exclusively owned by the deceased Timothy Mbondo Ndolo as shown in a true copy of the allocation letter by the Machakos African District Council dated 23rd July,1960 (annexed and marked copy of the letter marked as DNM-11).u.He implored the Honorable Court to reconsider its ruling and review the same, setting aside its said orders.

Further Affidavit 17. The Applicant herein in his Further Affidavit dated 25th April,2023 and filed in Court on 30th May,2023, wherein he deposed that:a.It is regretted, the situation does not appear to him that there were parallel proceedings, but rather a case where the file appears to have been irregularly transferred to a higher court and continued to its conclusion.b.The foregoing not withstanding if the Court were to find that the proceedings herein are irregular as to warrant the orders of 25th November,2021, his most humble view is that even the said orders would not cure the fundamental irregularity which would go to the heart of the jurisdiction of this court to entertain the proceedings at all.c.On the purported meeting of 22nd November,1981 he reiterates that he was present and never signed ant document as purported.d.The meeting was not relevant in the proceedings as the same could have validly devolved of the deceased as it was not a will.e.There is no evidence that has been brought before this court to show that the Respondent’s father owned MUTHETHENI/KIONYWENI/77, no entry in the Registry Index Map has been shown to prove any special interest that the Respondent’s father had in the property.f.Both the deceased and the Respondent’s father shared a compound in Muthetheni/Kionyweni/12. After the death of the deceased, the Respondent’s father pointed out a portion of Muthetheni/Kionyweni/77 in 1986 to him to construct a home, thereafter he pointed out to the Respondent a separate portion of the same property where he built his home. they lived well in peace.g.The Respondent’s father had the opportunity to voice any objections during the registration of Muthetheni/Kionyweni/77 in 1979 as shown in a true copy of the Green Card DNM-2 of the supporting affidavit.h.If indeed the Respondent’s father had believed that Muthetheni/Kionyweni/77 belonged to him exclusively, he would not pointed out the portion to him where to build.i.On the shop at Kionyweni Market Plot No. 2 he produced the document of title being DNM-11 in his supporting Affidavit and speaks for itself. Clearly, any purports otherwise from the said meeting were bred out of ignorance of facts and cannot be relied upon. He urged the to find that the said meeting failed to appreciate the ownership of the properties and it was invalid for purposes of distributing the properties.j.The Respondent’s father died way after the meeting and confirmation of grant as well as the sub division. He never raised any objection and neither did the Respondent brought him to court during his lifetime to voice any concerns even after 2009 when he purportedly gave the Respondent power of Attorney.

18. The matter was disposed by written submissions.

Submissions Applicant’s written Submissions 19. The Applicant in his submissions dated 13th June,2023 and filed in court on 14th June,2023, wherein Mr. Githinji, counsel for the Applicant raised issues that he submitted on sequentially.

20. On whether the Application has met the threshold for review of the Orders of 25th November,2021, counsel placed credence on the provisions of Order 45 Rule 1 CPR which is to the effect that:Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

21. Submitting that the Applicant has deposed that indeed he was on the whole totally unware of these proceedings leading to the orders of 25th November,2021 as the proceedings were never brought to his attention by his then Advocates on record who appeared to have been served with the process all along.

22. Averring that the last time he participated was 1994 when he was issued with a certificate of confirmation of grant. Imploring court not to visit him the punishment of the errors of his Advocates on record. To buttress this position counsel placed credence in the cases of Kakamega High Court Civil Case No. 5 of 2013 Bernadette Canute vs Nerbert Sore Makatiani [2016] e KLR and Kenya Industrial Estates Limited vs Samuel Sang & Another [2008] e KLR, it was observed that:ConclusionsA memorable pronouncement in that regard was made by Madan J.A., Obiter in Murai vs. Wainaina (No.4) [1982] KLR 33 where he said: -“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a person of experience who ought to have known better has made a mistake. The Court may not forgive or condone it but it ought to certainly do whatever is necessary to rectify it if the interest of justice so dictates. It is known that courts of justice themselves make mistakes which is politely referred to as erring, in their interpretation of law and adoption of a legal point of view which Courts of Appeal sometimes overrule. It is also not unknown for a final Court of Appeal to reverse itself when wisdom accumulated over the course of years since the decision was delivered so required. It is also done in the interests of justice.”Having considered all of the above I am satisfied that this a proper case for the exercise of my discretion to grant an extension of time to the applicant within which to lodge and serve Notice of Appeal and Record of Appeal out of time in the intended Appeal from the judgment and decree of the High Court of Kenya at Nairobi (Visram J.) dated 21st January 2004. ”

23. Similarly, counsel cited the case of Patrick Musili Kitungu Vs Emma Syombua Maluki & Another [2015] eklr where it held the following;“The applicant submits that a mistake by an advocate should not be visited upon innocent party. He relies on the case of CREDIT BANK LTD VS BARCLAYS BANK KENYA LTD NAIROBI C.A 178/98 and submits that in line with the said case, the court should adopt holding that in the overriding principle must be of necessity for the court to do justice between the litigants. Further in the case of SHAH VS MBOGO & ANOTHER (1967) EA page 116, court summarized powers of setting aside orders or judgment in which the case of OOKO OTANGA VS PHILISTER MARY NABUNJO(1964) EA page 384 was cited. The bottom line being to let a party have a day in court and not to send away the applicant from the seat of justice empty handed. On the respondent’s submissions, it is submitted that the failure to attend court was in excusable and reasons given are not genuine.The court ought to have borrowed on the case of CREDIT BANK LTD supra and adopted the mantra that, the overriding principle must be of necessity for the court to do justice between litigants.The mistake by the applicant advocate can be redressed by way of the costs.

24. It was submitted that on the facts of the case, the Court set aside its own orders, reinstated the Application, subject to thrown way costs of Kshs 5,000. It was prayed that the court finds that the applicant should not be blamed for the errors and misconduct of R.M Matata & Company to inform of the proceedings.

25. Further, Counsel relied on the case of Alpha Fine Foods Limited Vs Horeca Kenya Limited & 4 Others [2021] eKLR, where the Superior Court made the following observation:“Ordinarily, the expression discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made would refer only to a discovery made since the order sought to be reviewed was passed. An applicant alleging discovery of new and important evidence must demonstrate that he has discovered it since the passing of the order sought to be reviewed. In the instant application, the applicant claims to have injected capital to the tune of US 1. 5 million prior to the granting of the order sought to be reviewed. He is now claiming that he was not aware of the said evidence at the time of passing the order yet he claims he is the one who injected the capital. He claims he did not have the minutes. However, he had the information, so, nothing prevented him from availing the information to the court by way of a sworn affidavit. To pass the test, it must be demonstrated that the applicant was prevented by circumstances beyond his control from tendering the evidence to the court at the time when the judgment sought to be reviewed was delivered against him. The instant application cannot pass this test. If the information was with the liquidator as alleged, nothing prevented the applicant from procuring such evidence either by way of witness summons or by a sworn affidavit. To satisfy the test under the rules, an applicant must demonstrate discovery of new evidence which he could not procure at the time the application was heard despite exercise of due care and diligence….”

26. Counsel submitted that the filing of the suit was on the whole done without the participation of the Applicant. averring that the Applicant was denied the opportunity to produce his evidence in rebuttal thereto and as deponed by the Applicant the last he had of the case was 1994. He went ahead and obtained Title Deeds and to the best of his knowledge he understood the matter to have been settled

27. Counsel further relied on the case of Nasibwa Wakenya Moses Vs University of Nairobi & Another [2019] eKLR to buttress his position on the grant of review.

28. On whether the Applicant is guilty of filing parallel proceedings before the lower court and this court, Counsel contended that the Applicant pleads complete ignorance of this fact as he was not aware that there were parallel proceedings and that even if he had been made aware of the fact, he would not have made anything out of it as a person unschooled in law and procedure.

29. Opining that from the perusal of this issue appears to have been subject of investigations at the instance of the court vide directions issued on 27th September,2002. Averring that the Applicant has never to date been asked to shed light on this issue and neither does he know what became of the investigations, if any.

30. It was contented by the Counsel for the Applicant notwithstanding the irregularity he went ahead and distributed the land fairly according to the confirmed grant. It was the Applicant’s case that the Respondent in his view regarding the irregularity did not suffer any prejudice and none has been pleaded by the Respondent.

31. To buttress his point on prejudice Counsel relied on the case of in Re Estate of Efstratios Meimaridis Phaedon (Deceased) [2005] eKLR, court held as follows:The essence of publication of the Notice of Petition is to inform any party who might be desirous of filing an objection to do so. The Applicant was aware of the petition as can be seen through correspondence exchanged between the Petitioners Counsel and the Applicant Counsel.On 10/5/05 the files were consolidated so that even if the Applicant came to Court to lodge her objection under P & A Cause No. 507 of 2005, she would definitely have traced the correct P & A No. 2204 of 2004 whereby the files were consolidated.I have not been satisfied that the Applicant has suffered any prejudice as a result of publication of the petition under the wrong Cause No…In conclusion, I find that the Applicant has not suffered any prejudice because even if she had filed an objection the deceased widow still had the priority and indeed her Counsel was kept in the know of when the various files were consolidated.

32. On the Purported meeting of 22nd November,1981, Counsel opined that the Applicant depones meeting would have no impact on the distribution of the estate. Contending that the deceased died intestate and his estate had to devolve under rules of intestacy. To substantiate this position counsel relied on the case in Re Estate of Edward Mutuku Mwando (Deceased) [2022] eKLRwhich case dwelt on the definition of intermeddling

33. It was the position of the Applicant that the meeting had no bearing whatsoever on these proceedings and could not substitute the proceedings.

34. On Muthetheni/Kionyweni/63, it was the Counsel’s contention that the property was free properties of the deceased, the property was correctly pointed in the Respondent’s Affidavit dated 4th May 2021 as being held by Kyule Ndolo. It was not and is not the free property of the deceased.

35. On the shop at Kionyweni market, it was submitted that the shop was allocated exclusively to the deceased by the Machakos African Council on 23rd July,1960. Opining that the documents speak for themselves and nothing extrinsic to them is Admissible. To buttress this position Counsel placed credence on the case of Ufrah Motors Bazaar & Another Vs Kibe Civil Appeal 39 of 2021 [2023] KEHC 1285 (KLR).

36. It was the Applicant’s case that the Application has met threshold of grant an order of review.

Objector’s/Respondent’s Submissions 37. The Respondent in his submissions dated and filed in court on 23rd June,2023, wherein counsel for respondent raised the following issues:1. Whether the orders of 25/11/21 should be reviewed and/or set aside.2. Whether temporary injunctive orders should issue.3. Who should bear Costs.

38. On whether the orders of 25/11/21 should be reviewed and/or set aside, counsel relied on Section 80 of The Civil Procedure Act which provides:“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

39. Additionally, reliance was on Order 45 Rule 1 of the Civil Procedure Rules. The specific tenets for Review Applications are:a.Where there is a new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed.b.where some mistake or error apparent on the face of the record and.c.For any other sufficient reason”

40. Contending that the vide the Ruling dated 25/11/21 this honorable court correctly observed that the Petitioners herein instituted parallel proceedings owing to the fact that although the grant was issued in Machakos Senior Resident Court on 16/2/1988 the same was confirmed in Machakos High Court on 8/11/94 in devoid of the requisite transfer order hence a clear manifestation of irregularity.

41. It was the Counsel’s contention that the administrators captured in the grant and those captured in the certificate of confirmation of grant differs in that the Applicant’s name was missing yet no explanation offered.

42. It was averred that Applicant cannot feign ignorance because it is trite principle that ignorance of the law is no defence similarly the Applicant cannot take comfort in Article 159 (2) (d) CoK 2010 as the said Article is not a panacea for all ills.

43. It was the Respondent’s case that the Applicant and his cohorts failed to disclose to the honorable TMM-1 a&b- family Distribution and certificate of translation dated 22/11/81 respectively to the replying affidavit dated 18/4/23. Further that the Applicant’s allegation that the Objector never took any steps towards effecting the Orders of 25/11/21 TMM-2 & 3- stamped Applications dated 25/11/21 and 14/3/23 respectively.

44. Counsel in reconciling the facts with the case law relied on the case of Mnaver N Alibhai Vs South Coast Holdings Ltd [2016] eKLR, P.J. O. Otieno J stated:“My reading of the grounds of the application do not persuade me that the applicant is alleging an error apparent on the face record or the discovery of new and important matter of evidence. That leaves the third limb, of “any other sufficient reason” ……...I hold the view that the expression sufficient reason for purposes of review must be construed to be reasons analogous and consistent with the existence of new and important matter of evidence and an error apparent on the face of the record. It cannot be any reason picked from anywhere and leading on anything. That would take the decision to the realm of whim and caprice…. …. ….The upshot is that this application fails for the reasons aforesaid and is thus dismissed with costs”

45. Similarly, Counsel cited the case of Ndungu Njau Vs National Bank of Kenya Limited [2008] eKLR, Court of Appeal observed that:“Neither in that application, its grounds or supporting affidavit nor in this appeal before us was or has been raised any important matter or evidence which was not within the knowledge of the appellant at the time the decree was passed in spite of exercise of due diligence which requires strict proof – see Kimita v. Wakibiru [1985] KLR 317 at page 321…… ……Nor was there any submission before this court about any mistake or error apparent on the face of the record to warrant an order of review which was sought before the learned Commissioner of Assize.There was no reference to such mistake or error before the trial Commissioner of Assize or to this Court. The grounds of appeal before us do not point to any such omission or error….. …. …..Much as we sympathise with the appellant but we are of the firm view that these were and are not grounds upon which an order for review could have been granted.In writing his ruling on the matter subject to this appeal, the learned Commissioner of Assize was exercising his unfettered discretion…….In our view the learned Commissioner of Assize exercised his discretion properly in this matter and with respect to counsel, the points raised to seek an order of review before the Commissioner would have properly been raised as grounds of appeal in the superior court…..We find no merit in this appeal which we dismiss with costs to the respondent.”

46. On whether temporary injunctive orders should issue, counsel submitted to the negative the underlying reason being that it is the Objector who purchased land parcel No. Muthetheni/Kionyweni/77 as evident annexure TMM family distribution dated 22/11/81 and certificate of translation.

47. Contending that the Applicant has not adduced any Sale Agreement to confirm that the said Land Parcel No Muthetheni/Kionyweni/77 was jointly purchased by his father and the Objector’s father hence has not discharged his onus as envisaged under Sections 107-109 of the Evidence Act. Counsel relied on the case of Pink Properties Ltd Vs National Land Commission & 2 others [2019] eKLR, where it was observed that:“While this Court has jurisdiction to vary an injunction order and/or to review the same, I was not persuaded that there were any circumstances herein to warrant such a Variation and/or review. The injunction granted on 14th December 2018 was arrived at after this Court had heard both parties herein and the Court was satisfied that it was necessary to grant the same.The Applicant before me does not claim that there was any concealment of any material facts which, if they had been brought before the Court before that decision was arrived at, the orders would not have been granted. Rather it is clear that the 3rd Defendant is simply unhappy with the Orders made by this Court and seeks with the very same facts earlier put before the Court to get different results. This can be clearly discerned at Paragraph 13 of the 3rd Defendant’s Supporting Affidavit where she depones as follows: -In my view, a party seeking a reconsideration of similar facts is an aggrieved party whose only remedy is an appeal of the decision of the Court and not an application for variation and/or review of the orders as the 3rd Defendant purports to do by this application.”

48. On who should bear Costs, reliance was placed on Rule 69 of the Probate and Administration Rules, which is to the effect that Costs of any Proceedings are at the discretion of the Judge or court. averring that the present Application is entirely bereft of merit and thus same should be dismissed with costs.

Determination/Analysis 49. The Court considered the pleadings and written submissions by parties through respective Counsel, the issue for determination is review of this Court’s Ruling of 25th November 2021 under Order 45 CPR 2010. The Applicant sought review on the following grounds;a.He was not aware of the hearing and determination of the application for revocation of grantb.He was not aware or party to parallel proceedings in the Resident Magistrates Court and the High Court of Kenya Machakosc.He should not be condemned unheardd.The mistake of the advocate should not be visited on hime.The Applicant is a neighbor and did not inform him of the matter.

50. The Applicant relied on Order 45 Rule 1 CPR 2010 that he was not aware or informed or served with the Application for revocation of grant and only realized upon the Ruling of 25th November 2021 on eKLR which revoked the grant of 1988 and cancelled all titles to revert to the original and further action on the contested property/77 was prohibited.

51. The Applicant also took issue with the Court’s finding vide the impugned Ruling that the proceedings leading to issuance of grant for letters of administration and confirmation of grant were/are irregular as parallel proceedings were in place and conducted in both the Senior Resident Magistrate’s Court and in the High Court Machakos should not be visited on the parties as it a mistake by advocate(s). Secondly, there was/is disparity of the Administrators of the deceased’s estate as shown in the Kenya Gazette and subsequent grant of administration and those named in the Certificate of Confirmation of Grant.

52. The Applicant based the application for review of the Ruling due to the discovery of new and important matter or evidence which, after the exercise of due diligence, as he was not aware of the application for revocation of grant that culminated with the Court Ruling of this Court and secondly, the advocates on record served were not in conduct of the matter as matters ended with certificate of confirmation of grant. These issues were not within his knowledge and therefore there is sufficient reason for review of this Court’s Ruling.

53. The Court record confirms service of the Application and on 16/6/2021, Mr. Mutinda Kimeu held brief for Mr. Matata for the Applicant who sought to get in touch with his clients for instructions. He sought 21 days to file submissions to the Application. The Court granted the application for adjournment. Thereafter, the advocate and/or parties did not attend Court, file documents/pleadings or make any representation. Hence the Court delivered the impugned Ruling of 25/11/2021.

54. On 21/3/2023, the Respondent filed Application Summons for Appointment of Administrators pursuant to the Ruling of this Court revoking the grant of 1988. It is thereafter, that the instant Application was filed.

55. The Court record depicts various anomalies bedeviling the Succession Cause. In spite of being an inordinately old matter, it is punctuated by various gaps and inconsistences that vitiate a lawful and regular process of administration and distribution of the estate.

56. A cursory glance through the Court file, as far back as 2002, the original Court file went missing and a skeleton file was opened, the new file/skeleton file was mutilated as noted by the Trial Court. The process leading to obtaining grant of letters of administration intestate and thereafter filing of Summons for Confirmation of Grant and/or proceedings of confirming the grant and culminating to distribution of the estate to the beneficiaries, their written consents or protests that were filed heard and determined by the Trial Court are all missing. Without blaming the parties, this being a Court of Record, the process of obtaining grant and confirmed is irregular and should be regularized.

57. In Re Estate of Peter alias Petro Okumbe Ouko (deceased) High Court Siaya[2020] eKLR reaffirmed the fact that each estate of the deceased should only be processed in a single Succession Cause and proceedings of the deceased’s estate.33. Preferably, consolidation of succession causes is permissible where several of them are initiated with respect to the estate of the same individual who has died intestate. The reasoning behind such consolidation is that there should not be more than one succession cause over the same estate of the same deceased since the deceased individual can only possibly have common assets and common survivors or heirs, and his estate should only be distributed once. Permitting separate succession causes in the estate of the same deceased person to run, risks a situation where the courts seized of the different matters make different orders on distribution. That would embarrass the courts and the parties, for having two inconsistent or contradictory orders on confirmation of the grants and would present a nightmare at distribution. Parallel succession processes should never be allowed at all costs, save where the deceased died partially testate and partially intestate, since in such cases, there would be separate administrations, one in testacy and the other in intestacy.

58. Of concern, in its Ruling of 25/11/2021, this Court found the process and outcome of these Succession proceedings wanting. The irregular process could not generate a valid and lawful outcome; distribution of the deceased’s estate. This Court observed as follows;34. After carefully examining the application for Revocation of Grant/Amended Summons this Court is satisfied that the grant of letters of administration issued on 16th February 1988 in Resident Magistrate’s Court Machakos and confirmed grant of 8th November 1994 issued by High Court Machakos were obtained fraudulently by the making of a false statement and/or by the concealment from both Courts, that parallel proceedings over the same estate of Timothy Mbondo Ndolo in Succession 26 of 1984 in both Courts. This was/is highly irregular as no transfer was made to either Court, the details in each file on grant and administrators were different.35. The mode of distribution in the confirmed grant was not in compliance with Section 71 of Law of Succession Act that ALL beneficiaries were/are identified and their shares of the deceased’s estate before confirmation of the grant is issued. The administrators concealed material information of the family Agreement of 21st November 1981 on distribution of the estate.36. On 16th June 2021 & 27th September,2021, parties before Trial Judge Hon. D. K. Kemei were granted time to file Response to the Application and submissions. The respondent /Petitioners did not do so. They did not attend Court physically/virtually nor were they represented by Counsel. No reasons or explanation was offered to Court to consider. Therefore, the Court reserved the matter for Ruling on 26th October 2021. 37. The summons being on unopposed and no evidence been tendered in rebuttal in effect means that the orders sought are granted.

59. Hence the Court set aside the distribution of the deceased’s estate so as to allow the Administrators and beneficiaries engage consult and/or agree on the mode of distribution of the estate.

60. From the above chronology of events, there are glaring anomalies in the administration and distribution of the deceased’s estate to sustain and uphold the Certificate of Confirmation of Grant of 1988 and set aside the Court Ruling of 25/11/2021. There is no legal basis for review of the Court’s orders as the circumstances under probe remain the same.

61. The way forward is to regularize the distribution of deceased’s estate, by appointment of Administrators of the estate of the deceased and may adopt earlier mode of distribution if ALL beneficiaries agree and append written consents and/or allow them to explore agreeable mode of distribution of the estate by family discussions and/or negotiations, Court annexed mediation after filing Summons for Confirmation and serve ALL beneficiaries for their written consents if agreeable and/or file Protests with alternative proposed mode of distribution of the estate for the Court to hear and determine the Protests.

Disposition 62. This matter being over 30 years in the justice system, this Court grants 90 days suspension of the Court orders of 25/11/2021 to allow the process of distribution of the estate to commence. In default on expiry of the said period without starting the regularization process, the said orders remain in force.

63. This court appoints under Section 66 LSA the following as Administrators of the estate as advertised in the Kenya Gazette;a)Rhodah Mutono Mbondo or representativeb)Tabitha Mbondo or representativec)Mwangangi Ndolo now substituted to the Applicantd)Daniel Ngao NdoloAdministrators of the estate of the deceased and may adopt earlier mode of distribution if ALL beneficiaries agree and append written consents and/or allow them to explore agreeable mode of distribution of the estate by family discussions and/or negotiations, Court annexed mediation after filing Summons for Confirmation and serve ALL beneficiaries for their written consents if agreeable and/or file Protests with alternative proposed mode of distribution of the estate for the Court to hear and determine the Protests.

64. The Application for review is dismissed parties granted 90 days to jumpstart legal process of administration and distribution of deceased’s estate.

RULING DELIVERED SIGNED DATED IN OPEN COURT IN MACHAKOS ON 13TH DECEMBER 2023 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIN THE PRESENCE OF;MR. MUKULA FOR OBJECTOR/RESPONDENT