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ELCDismissedSuccession Cause (application dated 10/06/2019)

In re Estate of Japheth Mathiu Mungania (Deceased) [2020] KEELC 3509 (KLR)

High Court of Kenya (Succession Division)
20 February 2020
1,216 words in judgment
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The bottom line

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The High Court in Meru dismissed a protestor's bid to review a succession judgment because his 'new' land documents were neither new nor lawful dealings with the estate.

What this practically means

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Executive summary

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By an application dated 10/06/2019 under Order 45 of the Civil Procedure Rules, the protestor sought review of the court's judgment of 16/05/2019 dismissing his protest in a succession cause, and that the protest be allowed. He claimed the deceased had combined LR Abothuguchi/Githuche 1560 and 1561 into Parcel 3417, later subdivided into Parcels 3461 (transferred to the Full Gospel Church) and 3462 (transferred to him), and that he had only been able to produce uncertified copies at trial because documents at the lands office were reportedly missing and under DCI investigation. The 1st respondent denied the existence of the parcels and alleged fraud. The court summoned the District Land Registrar, Meru Central, who testified that the combination and subdivision occurred on 11/8/2017, produced certified copies, and denied the documents had been lost, explaining that a 2008 transfer of Parcel 3462 must have been rejected since the parcel did not then exist. Applying Order 45 as imported by Rule 63 of the Probate and Administration Rules, the court held the protestor failed to show the evidence could not with due diligence have been produced earlier, and that in any event the documents - executed after the deceased's death on 12/11/2007 and perfected in 2017 in breach of section 45 of the Law of Succession Act - amounted to intermeddling and could not affect the judgment. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the protestor demonstrated discovery of new and important evidence which, with due diligence, could not be produced when the judgment of 16/05/2019 was made
  2. 2.Whether the certified land documents, if admitted, would affect the decision already arrived at
  3. 3.Whether the land transactions relied on were lawful or amounted to intermeddling with the deceased's estate

Key legal issues

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01

Discovery of new evidence as a ground for review

Holding

The ground failed because the documents existed throughout, no investigation was proved, and the Land Registrar denied the documents were lost

Reasoning

The court found the explanation self-defeatist: the documents had existed at all times during the protest; the protestor could not identify who made the report of lost documents, where, when, or with what result; and the Land Registrar, when summoned, produced certified copies and denied the documents had been lost. The documents were found within two weeks of judgment.

p. 2
02

Effect of post-death transactions on the estate

Holding

All transfers executed after the deceased's death on 12/11/2007, perfected around 2017, were intermeddling in breach of section 45 of the Law of Succession Act and could not affect the court's decision

Reasoning

The deceased died on 12/11/2007, yet the transfer documents were signed on 21/4/2008 and the transactions were perfected in 2017. The Land Registrar testified Parcel No. 3462 did not exist when the transfer form was allegedly executed. The court held such dealings were intermeddling, possibly perpetrated by the protestor, and could not alter the impugned decision.

p. 2

Legal principles established

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  • An application for review in succession proceedings must meet the substantive requirements of Order 45, including discovery of new evidence not producible with due diligence, an error apparent on the face of the record, or sufficient reason, made timeously
  • Transactions carried out on estate property after the death of the deceased, contrary to section 45 of the Law of Succession Act, constitute intermeddling

Court orders

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  1. 1.The application for review dated 10/06/2019 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Order 45 of the Civil Procedure Rules as imported into succession practice by Rule 63 of the Probate and Administration Rules

Relief refused

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Review of the judgment of 16/05/2019 setting aside the dismissal of the protest and allowing the protest

The protestor failed to meet the threshold for review - the documents were always in existence, there was no proof of an ongoing investigation, and the transactions postdated the deceased's death and breached section 45 of the Law of Succession Act

p. 2

Costs

Application dismissed with costs (to the respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review as set out in Order 45.
p. 2Requirements for review in succession proceedings
That explanation is self-defeatist. Firstly, it is clear that the said documents have been in existence at all times during the pendency of the Protest.
p. 2Failure to establish discovery of new evidence
All the transactions that went on after November, 2007 until 2017 were but outright intermeddling with the estate of the deceased. They may have been perpetrated by the Protestor himself or on his behalf and benefit.
p. 2Intermeddling with the estate
In view of the foregoing, I find that the protestor has not met the threshold under Section 45 of the Civil Procedure Act and I dismiss the application with costs.
p. 2Disposition - application dismissed with costs

Issues in the judgment

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minor

The court's disposition refers to 'Section 45 of the Civil Procedure Act' while the body of the ruling discusses section 45 of the Law of Succession Act and Order 45 of the Civil Procedure Rules

minor

The ruling is signed by A. Mabeya, Judge, but dated and delivered by F. Gikonyo, Judge, at Meru on 20 February 2020

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Japheth Mathiu Mungania (Deceased) [2020] KEELC 3509 (KLR)", Case Analysis (2020). Succession Cause (application dated 10/06/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3509/eng@2020-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.