REPUBLIC OF KE NYA
IN THE HIGH COURT AT MAKUENI
CONSTITUTIONAL PETITION NO. E008 OF 2024
IN THE MATTER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW
-AND-
IN THE MATTER OF ARTICLE 40, 47, 48, 50 & 165 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF ORDER 53, RULE.1 (1), (2), (3) & (4) OF THE CIVIL PROCEDURE RULES 2010
-AND-
IN THE MATTER OF SECTION 4, 5 & 11 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, No. 4 OF 2015
-AND-
IN THE MATTER OF SECTION 3(2) AND 29 OF THE LAW OF SUCCESSION ACT CAP 160 AND RULE 21 & 22 OF THE PROBATE AND ADMINISTRATIVE RULES
-AND-
IN THE MATTER OF MAKINDU SPM CITATION CAUSE NO. 96 OF 2019: JULIUS MUSYOKA KIMUNDUU -vs- LYDIA KAMII & 15 OTHERS
CHURCHILL KAILITI MUTYANZIU………………………………..APPLICANT
-VERSUS-
THE HONOURABLE SENIOR PRINCIPAL MAGISTRATE,
MAKINDU LAW COURTS…….………………………….……1 st RESPONDENT
JULIUS MUSYOKA KIMUNDUU...……………..…………...2 nd RESPONDENT
THE HONOURABLE
ATTORNEY GENERAL…………………………..…….……...3 rd RESPONDENT
-AND-
INSPECTOR GENERAL,
KENYA POLICE……....………………………..……...1 st INTERESTED PARTY
JUDGMENT
Introduction
1. The Petition dated 16/09/2024 seeks the following orders;
A. DECLARATIONS be issued that:
i. The decisions and actions of the 1 st Respondent in issuing the Citation orders were guided by a void Agreement for Sale and as such the orders were unlawful, capricious and in breach of inter alia article 47 of the Constitution and Sections 4,5 and 6 of the Fair Administrative Action Act and threatened to disinherit the Petitioner and his family.
ii. The Petitioner was wrongfully arrested and detained in relation to Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others.
iii. The Respondents are liable to pay all incurred medical bills to the tune of Kshs. 236,000/= plus interest at court rate and with consideration to inflation levels.
iv. The 1 st Respondent is in breach of Articles 10(2) and 73(a) and (b) of the Constitution and Section 7 of the Leadership and Integrity Act by failing to serve the people in an equitable, inclusive, accountable and transparent manner and failing to uphold the rule of law which amounts to abuse of power and disregard for property rights and the right to fair administrative action.
v. It is unreasonable to issue arrest warrants and committal to civil jail orders in Citation proceedings .
B. AN ORDER FOR CERTIORARI to remove into the High Court and quash proceedings and orders issued by the 1 st Respondent on 11/09/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting the Citor’s prayers in the Citation dated 09/10/ 2019, without giving lawful and due consideration of evidence adduced by the citees, in contravention of the legal threshold of Fair Administrative Action expected of the Honourable Court.
C. AN ORDER FOR CERTIORARI to remove into the High Court and quash proceedings and orders issued by the Makindu Senior Resident Magistrate (Hon. B Ireri) on 14/08/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019 ;Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting injunctive orders to the Applicant against the Respondents restraining them from accessing their own property as owners and dependants of the Deceased per the meaning of Section 29 of the Law of Succession Act.
D. AN ORDER FOR CERTIORARI to remove into the High Court and quash proceedings and orders issued by the Makindu Senior Resident Magistrate (Hon. B Ireri) on 14/08/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting injunctive orders to the Applicant against the Respondents restraining them from accessing Plot No. 344 Muthingini Settlement Scheme, in contravention of the legal threshold of Fair Administrative Action expected of the Honourable Court.
E. AN ORDER OF PROHIBITION prohibiting continuation of proceedings and issuance of orders by the 1 st Respondent and the execution of orders by the 2 nd Respondent, and the 1 st and 2 nd Interested Parties from executing the orders issued erroneously by the 1 st Respondent in the aforementioned case, Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others .
F. AN ORDER OF MANDAMUS compelling the Respondents to transfer the aforementioned case, Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others and Makindu Succession Cause No. E001 of 2024 - In the Estate of the late James Mutyanziu Mung’atu alias James Mutyanziu Mung’ati alias Mutyanziu Mung’atu to this Court or any subordinate court at the Makueni Law Courts for trial and final disposal in the interest of justice.
G. SPECIAL DAMAGES (with interest at court rates of 14% per annum from the date of judgment until payment in full) for:
i. Admission fees – Kshs. 45,000/=
ii. Bed charges – Kshs. 49,000/=
iii. Pharmacy services – Kshs 106,230/=
iv. Laboratory Services – Kshs 30,750/=
H. EXEMPLARY AND PUNITIVE DAMAGES for unfair, unlawful and wrongful detention of the Petitioner with interest at court rates of 14% per annum from the date of judgment until payment in full.
I. GENERAL DAMAGES for mental pain and anguish owing to the unlawful detention.
J. Any Prerogative orders necessary in relation to settlement of prayers G-I by a public institution.
K. Interest at court rates of 14% per annum from the date of filing the Petition until payment in full.
L. Costs of the suit on a full indemnity basis with interest at court rates of 14% per annum from the date of filing the Petition until payment in full.
M. Any other relief that the Honourable Court shall deem just.
2. The facts in support of the Petition were stated to be ; That, at all material times the 1 st Respondent was the judicial officer allocated Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others and under whose ambit the role of hearing and determining the said case fell. That, the 1 st Interested Party has orders from the 1 st Respondent allowing his representatives and/or agents to assist in the execution of orders explicit and implied stemming from the proceedings in Makindu Succession (Citation) Cause No. 96 of 2019.
3. That, the Petitioner is a primary dependant and beneficiary of the Estate of the late Mr. James Mutyanziu Mung’atu (hereinafter “the Estate”) under the meaning of Section 29 of the Law of Succession Act and by extension Article 40 of the Constitution of Kenya by virtue of being his son. That, the Petitioner together with 15 other dependants of the Estate claim an interest in Plot No. 344 Muthingini Settlement Scheme measuring 3.95HA (suit property) by virtue of being a widow and children to the late Mr. James Mutyanziu Mung’atu (the deceased).
4. That, on 09/10/2019 the 2 nd Respondent JULIUS MUSYOKA KIMUNDUU filed Makindu Succession (Citation) Cause No. 96 of 2019 claiming ownership of the suit property and thus sought the 1 st Respondent’s orders for Citation of the Petitioner and 15 other dependants of the Estate. That, the deceased had already subdivided the suit property between the Petitioner and his brother Christopher Mutyanziu. That, vide the 1 st Respondent’s Order issued on 11/09/ 2023, the 2 nd Respondent’s prayers in the aforementioned Citation were granted.
5. That, the 1 st Respondent granted the citation orders based on an irregular Agreement for Sale dated 02/11/ 2013 purported to have been entered into by the deceased and the 2 nd Respondent. That, based on the citation orders issued, the 1 st Respondent proceeded to issue Contempt of Court orders against the ex-parte Applicant and further committed him to civil jail over the festive season in December vide the order issued on 11/12/2023. That, prior to issuing the contempt orders, the 1 st Respondent had issued a temporary injunctive order against the Petitioner and his co-citees vide an order issued on 14/08/2023 despite them being in occupation of the land which effectively served as an eviction order; a substantive prayer issued at the interim stage which is unprocedural and an ultra vires action.
6. That, the temporary injunctive order was nonetheless unlawful noting that it sort to bar the 16 dependants from accessing their father’s property based on an illegal and void contract. That, the 2 nd Respondent relied on an Agreement dated 02/11/2013 to claim ownership of the suit property. That, prima facie examination of the Agreement shows that it is in contradiction to the laws governing contracts in Kenya, as it was, not executed or attested. That, no spousal consent was issued hence the construction of the same should have been found as void by the 1 st Respondent.
7. That, the 2 nd Respondent never presented to the 1 st Respondent or the Citees proof of payment of the alleged purchase price of Kshs. 210,000/= or the balance of Kshs 90,000/=. That, the 2 nd Respondent never made an attempt to claim ownership of the suit property while the deceased was alive, therefore, even if the impugned Agreement existed it is possible he never completed payment of the purchase price, thus, he breached it.
8. That, the 2 nd Respondent is a long-term neighbor of the deceased and his actions in respect to the suit property amount to attempted encroachment and unjust enrichment at the expense if the dependants to the Estate. That, Based on the impugned proceedings, the 1 st Respondent issued orders on 14/09/2023 directing the Citees to file succession proceedings within 60 days with a mention date set for 11/12/2023 for confirmation of the compliance.
9. That, the Order also allowed for the Citor to institute the proceedings in lieu of and despite that, the Court issued further punitive orders on 11/12/2023 committing all 16 citees to civil jail and an arrest warrant issued on 15/12/ 2023. That, on 28/12/2023, only the Petitioner was arrested and committed to civil jail vide the Committal orders issued by the 1 st Respondent on the same date.
10. That, citation orders give clear cut remedies wherein if the Citees failed to heed the orders issued then the Citor was at liberty to institute succession proceedings by himself. That, the actions by the Respondents were targeted as the suit property lies where the Petitioner and his brother had been allocated by their father and as such sought to consciously disinherit them.
11. That, the 2 nd Respondent stands to gain unjustly from a Deceased’s estate to the detriment of 16 living dependants and the Petitioner has no confidence he will receive a fair hearing and determination in Makindu Succession (Citation) Cause No. 96 of 2019 and Makindu Succession Cause No. E001 of 2024, both before the 1 st Respondent and as such wishes to have the same transferred to Makueni Law Courts.
12. The nature of injury caused to the Petitioner was stated to be ; That, the Petitioner was arrested and held at the Kenya Prison Service Makueni Remand Wote, following the committal orders, to great personal embarrassment as a man of great societal reputation and a grave cumulative violation of his human rights as a result by organs of the state.
13. That, whilst in Remand, the Petitioner contracted serious ailments occasioned by the unhygienic state and his old age which he is yet to recover from. That, as a result of the ailments, he has incurred heavy medical costs as he was admitted at Ngara Comprehensive Health Services Ltd on 15/01/ 2024 until 22/01/2024 wherein he was diagnosed with; Amoeblasis (gastro-intestinal disease), Pneumonia (respiratory disease) and Pityriasis vesicular (fungal skin disease). That, he incurred medical costs to the tune of Kshs. 236,000/= as follows;
i. Admission fees – Kshs. 45,000/=
ii. Bed charges – Kshs. 49,000/=
iii. Pharmacy services – Kshs 106,230/=
iv. Laboratory Services – Kshs 30,750/=
14. That, the Petitioner’s children; a Bio-Engineer intern in Mombasa and a student at the National Industrial Training Authority had to miss out on their academic activities owing to the arrest and detainment.
15. That, the Petitioner spent the December holidays alone at the Remand to great personal mental pain and anguish as well as that of the rest of his family. That, his family was in anguish over the looming threat of arrest as the arrest warrant was issued against the entire family.
16. The Constitutional provisions violated were stated to be;
a) The 1 st Respondent failed to ensure that he adhered to the set laws on contracts, land, citations et al and as such his actions failed to conform to Article 47 of the Constitution by granting orders that were not lawful, reasonable and in a procedurally fair manner.
b) The 1 st Respondent, through his orders, threatened to disinherit the legal dependants to the Estate of the late Mr. James Mutyanziu in violation of Section 29 (1) of the Law of Succession Act and Article 40 of the Constitution.
c) The 2 nd Respondent sought to legalize his acts of intermeddling by seeking impugned orders through the 1 st Respondent in violation of Section 45 of the Law of Succession Act.
d) The Respondents’ contravened Article 10 (2) of the Constitution by infringing on the national values and principles of governance of equity, social justice, good governance, transparency, accountability and sustainable development.
e) The Respondents’ actions are oppressive, arbitrary and unconstitutional as the unlawful detention of the Petitioner has caused an impact to his physical health.
f) The Respondents’ actions have unlawfully exposed the Petitioner to astronomical costs that he should not be liable to pay in hospital.
g) Breaching the rules of natural justice by failing to accord the Petitioner a fair hearing.
h) The 1 st Respondent is in breach of Articles 10(2) and 73(a) and (b) of the Constitution by failing to serve the people in an equitable, inclusive, accountable and transparent manner which amounts to abuse of power through intimidation, disregard for property rights and the right to fair administrative action.
i) Breach of the provisions of Article 232 of the Constitution by failing to adhere to the highest principles of public service.
The Responses
17. The 1 st Respondent , through the office of the Attorney General, filed the following grounds of opposition;
a) THAT the Petitioner has failed to specifically demonstrate how their fundamental rights and freedoms have been violated by the Honourable Senior Principal Magistrate Court at Makindu based on an alleged violation of his right to fair administrative action, as espoused in the case of Anarita Karim Njeru -vs- R (1976-1980) KLR 1272 where the Court held that "... a petitioner ought to demonstrate in precision how the respondents' actions and conduct constitute a violation or infringement of their fundamental rights and freedoms."
b) THAT the petition does not demonstrate by way of evidence any of the alleged violation of rights by the 1 st Respondent.
c) THAT Article 24 of the Constitution of Kenya permits the limitation of rights and fundamental freedom. The rights alleged to have been violated by the Petitioner do not fall under the category of non-derogable fundamental rights and freedoms as per Article 25.
d) THAT the Petitioner failed to pursue appropriate remedies to address his grievances, including lodging an appeal or seeking a review of the Citation Order through a proper forum if he believed that the Order was guided by a void Agreement for Sale and as such was unlawful and capricious.
e) THAT in Hadkinson v Hadkinson (1952) ER it was held that "where it is submitted that a court order can only be attacked by having the same set aside, it must be obeyed even where the person aggrieved by the order believes it to be irregular or void." Therefore, the Petitioner cannot claim the Citation Order was illegal in retrospect without having pursued appellate or review processes.
f) THAT in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR it was stated that
"...there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts."
g) THAT Section 9 of the Fair Administrative Action Act provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
h) THAT in Maina Gitonga v Catherine Nyawira Maina & another [2015] eKLR it was expressed that;
"It is undoubted that under the established doctrine of judicial immunity, a judicial officer is absolutely immune from criminal or civil suit arising from actions taken within or even in excess of his jurisdiction. Judicial immunity is necessary for various policies..."
Therefore, the Petitioner errs by claiming the 1 st Respondent is liable to pay all incurred medical bills.
i) THAT Article 160 of the Constitution of Kenya enshrines Judicial Independence and as such provides that a member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
j) THAT the Petitioner cannot claim that the 1 st Respondent acted ultra vires when he was rendering his judicial duty by issuing the Citation Orders.
k) THAT in Econet Wireless Kenya Ltd v Minister for Information & Communications of Kenya & Another [2005] KEHC 1767 (KLR) it was held that
"due to the gravity with which the law and the court is deemed, any contempt of court or allegations thereof, the court is usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. Therefore, the 1 st Respondent followed the proper laid out procedure to issue arrest warrants in execution of the contempt of court orders issued.”
l) THAT with regard to the Petitioner's allegation that the 1 st Respondent has breached Articles 10(2) and 73 of the Constitution, the Petitioner fails to demonstrate, with the required precision, the manner in which the alleged breaches occurred, as is required in constitutional petitions pursuant to the principles laid down in Anarita Karim Njeru v Republic (No. 1) [1979] KLR 154.
m) THAT the Petitioner has erred in law by seeking an Order of Mandamus to compel the Respondents to transfer Makindu Succession Cause No. 96 of 2019 and Makindu Succession Cause No. E001 of 2024 from the Senior Principal Magistrate's Court at Makindu to this Honourable Court or to any subordinate court at the Makueni Law Courts, without first complying with the procedure for transfer of suits as set out under Section 18 of the Civil Procedure Act.
n) THAT the prayers sought for the Orders of Certiorari and Prohibition have been overtaken by events, as the impugned proceedings have already been concluded and the court has rendered its decision. As such, the orders sought have been rendered moot and incapable of undoing what has already occurred through a final judicial determination.
o) THAT the entirety of the petitioner's claim is unmerited in that it does not disclose and demonstrate any threat or violation of the Constitution or any other laws and the same ought to be dismissed.
p) THAT The petition is without merit, an abuse of the court process and ought to be dismissed with costs to the Respondents.
18. In rejoinder, the Petitioner filed a response dated 22/07/2025 to the grounds of opposition. He averred that despite having orders allowing him to institute succession proceedings by himself, the 2 nd Respondent opted to lodge a Notice to Show Cause against the Petitioner seeking his committal to civil jail. That, under Order 22 Rule 18 of the Civil Procedure Rules , a notice to show cause is typically invoked in execution proceedings following a decree or judgment. That, lodging a Notice to Show Cause to commit to civil jail after citation orders is a breach of procedure and an illegality.
19. He averred that despite the 1 st Respondent having an implied degree of expertise and competence as an Advocate of the High Court and Magistrate, he proceeded to issue Warrants of Arrest on 15/12/2023 against the Petitioner and 15 other Dependants of the Deceased’s Estate. That, he proceeded as such despite having authority to dismiss wrongfully filed pleadings, even suo moto if he deemed it appropriate. That, the issuance of the Warrants of Arrest, despite his orders and clear procedure on citations, was ultra vires hence the decision was not procedurally fair, reasonable, explicable, or legal, thus, amounting to misuse of judicial power and process and in contravention of Section 4 (1) of the Fair Administration Actions Act, No. 4 of 2015.
20. He averred that the doctrine of exhaustion was contravened by the 1 st and 2 nd Respondents as there was an alternative remedy to the issue at hand. That the 2 nd Respondent could have filed succession proceedings and the 1 st Respondent had a legal and professional duty to ensure compliance with the doctrine by striking out the Notice to Show Cause. That the 1 st Respondent’s act of ratification of the Notice to Show Cause, without establishing correct procedural compliance, amounts to a breach of Article 47 and Article 50 of the Constitution of Kenya.
21. He averred that on 28/12/2023, warrants of committal to jail were issued against him and he was the only one arrested and detained despite the warrants of arrest being issued against all the 16 Dependants. That, he wrongfully spent approximately 2 weeks in remand including the new year’s holiday and the rest of his family was apprehensive and uncertain of probable arrests.
22. He averred that by endorsing punitive action in a succession matter without a lawful basis, the 1 st Respondent failed to uphold the standards of expeditious, efficient, lawful, reasonable, and procedurally fair administrative action as mandated by Sections 4 and 5 of the Fair Administrative Action Act. That, the Petition and Response to the Grounds of Opposition herein raise cogent grounds of constitutional and human rights violations committed against the Petitioner that ought to be heard and determined before a court with jurisdiction to hear constitutional petitions which is the Honourable High Court herein.
23. The 2 nd Respondent filed an undated Replying Affidavit where he deposed that; with regard to the allegation of violation of Article 40 of the Constitution, the Applicant has failed to demonstrate that they suffered loss and would continue to suffer substantial loss if the order sought is not granted.
24. That, with regard to alleged violation of Article 47 of the Constitution, the Applicant has not demonstrated how the action of filing a citation cause infringed on his right.
25. That, with regard to alleged violation of Article 48 of the Constitution, he deponed that it is the prerogative of the State to guarantee access to justice for all and to ensure that any fees required are reasonable and do not hinder access.
26. With regard to alleged violation of Article 50 of the Constitution, he deponed that the Applicant was granted a fair hearing during the citation proceedings.
27. He deponed that the Applicant has not met the threshold of constitutional petitions as set out in the Anarita Karimi case which prescribes that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of, noting to stipulate which constitutional provisions have been infringed and how they have been infringed. That, the Applicant has only enumerated the constitutional provisions that have allegedly been infringed by the 1 st and 2 nd Respondents but has not pleaded any particulars with reasonable clarity on how those provisions have been violated and the extent of the violation.
28. He deponed that the Applicant should have appealed against the said decision if he felt aggrieved pursuant to section 65 of the Civil Procedure Act.
29. In response to alleged violations of the Fair Administrative Actions Act, he deponed that he hds no control over the decision making of any judicial officer during the conduct of their ordinary business of dispensing justice. That, the Applicant had failed to demonstrate that the 1 st Respondent violated any of their rights and has merely made unsubstantiated allegations.
30. He deponed that the alleged infringement of rights is well available in civil redress without instituting this application. That, according to the doctrine of constitutional avoidance, where a dispute can be determined through another forum without necessarily raising a constitutional issue, the same should be pursued.
31. He deponed that he bought a four-acre portion of land known as 344 Muthingii Settlement Scheme for value from the deceased who died in 2017 before transferring the same to him. That, he requested the family members to take out letters of administration so that he could be recognized as a creditor and their subsequent refusal caused him to file a citation cause. Copies of proceedings are exhibited as JMK1.
32. He deponed that the Applicant sought to vacate orders of the 1 st Respondent by filing Makindu Civil Misc Application No E001 of 2024 where he was granted the orders sought by Justice Limo. A copy of the order is exhibited as JMK2.
33. He deponed that the Applicant had an opportunity to lodge a claim in an Environment and Land Court and ventilate his issues thereon. That, the Applicant has since come to the realization that he has no valid grounds to rebut the claim of purchase and has recognized him (2 nd Respondent) as a creditor of the estate.
34. He deponed that the claim of unfair determination has been overtaken by events as the Makindu succession cause has already been closed and he has already been recognized as a creditor of the estate.
35. He deponed that the Applicant did not adduce any committal to show that he was really incarcerated at the Makueni prison as claimed. That, the Applicant is engaging in a vexatious exercise by claiming infringement of rights on one hand and acknowledging him as a creditor on the other hand.
36. He deponed that the citation cause was closed on 18/03/2024 as the citees petitioned for letters of administration in Succession Cause No. E001 of 2024 and recognized him as a creditor of the estate hence the citation proceedings have served their purpose. The succession pleadings are exhibited as JMK3.
37. He deponed that the Applicant had not produced any documents to support his claim of medical costs incurred.
38. He deponed that the prayers for certiorari and prohibition had already been overtaken by events as the file had since been closed. That, the order for mandamus had not been properly sought and the matter had been closed hence not in a position to be transferred.
39. He deponed that this court lacked jurisdiction to entertain, hear and determine the petition as pleaded for reason that the nature of the dispute could be litigated in other legally constituted forums. That, the petition had been brought to this court in total disregard of the law and is an abuse of the court process.
40. The Petition was canvassed through written submissions.
Submissions by the Petitioner
41. The issues for determination were identified to be;
a) Whether it was reasonable and justifiable to issue warrants of arrest and committal to civil jail in a Citation matter.
b) Whether the 1 st Respondent and the 2 nd Respondent exhausted the appropriate reliefs in regards to the citation application.
c) Whether the Petitioner’s right to fair trial was infringed.
d) Whether by the 1 st Respondent issuing an injunction order serving as an eviction notice violated the Petitioner’s hereditary and proprietary rights in regards to Plot No. 344 Muthingini Settlement Scheme.
e) Whether the petitioner herein is entitled to the reliefs sought
42. On whether it was reasonable and justifiable to issue warrants of arrest and committal to civil jail in a Citation matter, it was submitted in the affirmative and reliance placed on Rule 22 of the Probate and Administration Rules for the submission that if the person cited has entered an appearance but has not within 30 days after his appearance applied for a grant under sub rule (4), or has failed to prosecute his application with reasonable diligence, the citor may, in the case of a citation under subrule (1), petition the court for a grant to himself.
43. Further reliance was placed on the Estate of Steven Mwangi Mbugua(deceased) Mombasa HCCC No 1 of 2003 where the court (Sergon J) stated;
“…if the person cited refuses or fails to appear upon being cited or to apply for the grant, the citor may proceed to petition the court for grant...”
44. It was submitted that upon issuance of citation orders, the remedies available to the 2 nd Respondent were limited to lawful succession action and not enforcement or coercion. That, the deployment of Order 22 Rule 18 of the Civil Procedure Rules in citation proceedings is not merely a technical error but a jurisprudential breach. That, Order 22 Rule 18 of the Civil Procedure Rules only permits Notice to Show Cause in execution following a lawful judgment or decree.
[...truncated]
IN THE HIGH COURT AT MAKUENI
CONSTITUTIONAL PETITION NO. E008 OF 2024
IN THE MATTER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW
-AND-
IN THE MATTER OF ARTICLE 40, 47, 48, 50 & 165 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF ORDER 53, RULE.1 (1), (2), (3) & (4) OF THE CIVIL PROCEDURE RULES 2010
-AND-
IN THE MATTER OF SECTION 4, 5 & 11 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, No. 4 OF 2015
-AND-
IN THE MATTER OF SECTION 3(2) AND 29 OF THE LAW OF SUCCESSION ACT CAP 160 AND RULE 21 & 22 OF THE PROBATE AND ADMINISTRATIVE RULES
-AND-
IN THE MATTER OF MAKINDU SPM CITATION CAUSE NO. 96 OF 2019: JULIUS MUSYOKA KIMUNDUU -vs- LYDIA KAMII & 15 OTHERS
CHURCHILL KAILITI MUTYANZIU………………………………..APPLICANT
-VERSUS-
THE HONOURABLE SENIOR PRINCIPAL MAGISTRATE,
MAKINDU LAW COURTS…….………………………….……1 st RESPONDENT
JULIUS MUSYOKA KIMUNDUU...……………..…………...2 nd RESPONDENT
THE HONOURABLE
ATTORNEY GENERAL…………………………..…….……...3 rd RESPONDENT
-AND-
INSPECTOR GENERAL,
KENYA POLICE……....………………………..……...1 st INTERESTED PARTY
JUDGMENT
Introduction
1. The Petition dated 16/09/2024 seeks the following orders;
A. DECLARATIONS be issued that:
i. The decisions and actions of the 1 st Respondent in issuing the Citation orders were guided by a void Agreement for Sale and as such the orders were unlawful, capricious and in breach of inter alia article 47 of the Constitution and Sections 4,5 and 6 of the Fair Administrative Action Act and threatened to disinherit the Petitioner and his family.
ii. The Petitioner was wrongfully arrested and detained in relation to Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others.
iii. The Respondents are liable to pay all incurred medical bills to the tune of Kshs. 236,000/= plus interest at court rate and with consideration to inflation levels.
iv. The 1 st Respondent is in breach of Articles 10(2) and 73(a) and (b) of the Constitution and Section 7 of the Leadership and Integrity Act by failing to serve the people in an equitable, inclusive, accountable and transparent manner and failing to uphold the rule of law which amounts to abuse of power and disregard for property rights and the right to fair administrative action.
v. It is unreasonable to issue arrest warrants and committal to civil jail orders in Citation proceedings .
B. AN ORDER FOR CERTIORARI to remove into the High Court and quash proceedings and orders issued by the 1 st Respondent on 11/09/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting the Citor’s prayers in the Citation dated 09/10/ 2019, without giving lawful and due consideration of evidence adduced by the citees, in contravention of the legal threshold of Fair Administrative Action expected of the Honourable Court.
C. AN ORDER FOR CERTIORARI to remove into the High Court and quash proceedings and orders issued by the Makindu Senior Resident Magistrate (Hon. B Ireri) on 14/08/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019 ;Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting injunctive orders to the Applicant against the Respondents restraining them from accessing their own property as owners and dependants of the Deceased per the meaning of Section 29 of the Law of Succession Act.
D. AN ORDER FOR CERTIORARI to remove into the High Court and quash proceedings and orders issued by the Makindu Senior Resident Magistrate (Hon. B Ireri) on 14/08/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting injunctive orders to the Applicant against the Respondents restraining them from accessing Plot No. 344 Muthingini Settlement Scheme, in contravention of the legal threshold of Fair Administrative Action expected of the Honourable Court.
E. AN ORDER OF PROHIBITION prohibiting continuation of proceedings and issuance of orders by the 1 st Respondent and the execution of orders by the 2 nd Respondent, and the 1 st and 2 nd Interested Parties from executing the orders issued erroneously by the 1 st Respondent in the aforementioned case, Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others .
F. AN ORDER OF MANDAMUS compelling the Respondents to transfer the aforementioned case, Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others and Makindu Succession Cause No. E001 of 2024 - In the Estate of the late James Mutyanziu Mung’atu alias James Mutyanziu Mung’ati alias Mutyanziu Mung’atu to this Court or any subordinate court at the Makueni Law Courts for trial and final disposal in the interest of justice.
G. SPECIAL DAMAGES (with interest at court rates of 14% per annum from the date of judgment until payment in full) for:
i. Admission fees – Kshs. 45,000/=
ii. Bed charges – Kshs. 49,000/=
iii. Pharmacy services – Kshs 106,230/=
iv. Laboratory Services – Kshs 30,750/=
H. EXEMPLARY AND PUNITIVE DAMAGES for unfair, unlawful and wrongful detention of the Petitioner with interest at court rates of 14% per annum from the date of judgment until payment in full.
I. GENERAL DAMAGES for mental pain and anguish owing to the unlawful detention.
J. Any Prerogative orders necessary in relation to settlement of prayers G-I by a public institution.
K. Interest at court rates of 14% per annum from the date of filing the Petition until payment in full.
L. Costs of the suit on a full indemnity basis with interest at court rates of 14% per annum from the date of filing the Petition until payment in full.
M. Any other relief that the Honourable Court shall deem just.
2. The facts in support of the Petition were stated to be ; That, at all material times the 1 st Respondent was the judicial officer allocated Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others and under whose ambit the role of hearing and determining the said case fell. That, the 1 st Interested Party has orders from the 1 st Respondent allowing his representatives and/or agents to assist in the execution of orders explicit and implied stemming from the proceedings in Makindu Succession (Citation) Cause No. 96 of 2019.
3. That, the Petitioner is a primary dependant and beneficiary of the Estate of the late Mr. James Mutyanziu Mung’atu (hereinafter “the Estate”) under the meaning of Section 29 of the Law of Succession Act and by extension Article 40 of the Constitution of Kenya by virtue of being his son. That, the Petitioner together with 15 other dependants of the Estate claim an interest in Plot No. 344 Muthingini Settlement Scheme measuring 3.95HA (suit property) by virtue of being a widow and children to the late Mr. James Mutyanziu Mung’atu (the deceased).
4. That, on 09/10/2019 the 2 nd Respondent JULIUS MUSYOKA KIMUNDUU filed Makindu Succession (Citation) Cause No. 96 of 2019 claiming ownership of the suit property and thus sought the 1 st Respondent’s orders for Citation of the Petitioner and 15 other dependants of the Estate. That, the deceased had already subdivided the suit property between the Petitioner and his brother Christopher Mutyanziu. That, vide the 1 st Respondent’s Order issued on 11/09/ 2023, the 2 nd Respondent’s prayers in the aforementioned Citation were granted.
5. That, the 1 st Respondent granted the citation orders based on an irregular Agreement for Sale dated 02/11/ 2013 purported to have been entered into by the deceased and the 2 nd Respondent. That, based on the citation orders issued, the 1 st Respondent proceeded to issue Contempt of Court orders against the ex-parte Applicant and further committed him to civil jail over the festive season in December vide the order issued on 11/12/2023. That, prior to issuing the contempt orders, the 1 st Respondent had issued a temporary injunctive order against the Petitioner and his co-citees vide an order issued on 14/08/2023 despite them being in occupation of the land which effectively served as an eviction order; a substantive prayer issued at the interim stage which is unprocedural and an ultra vires action.
6. That, the temporary injunctive order was nonetheless unlawful noting that it sort to bar the 16 dependants from accessing their father’s property based on an illegal and void contract. That, the 2 nd Respondent relied on an Agreement dated 02/11/2013 to claim ownership of the suit property. That, prima facie examination of the Agreement shows that it is in contradiction to the laws governing contracts in Kenya, as it was, not executed or attested. That, no spousal consent was issued hence the construction of the same should have been found as void by the 1 st Respondent.
7. That, the 2 nd Respondent never presented to the 1 st Respondent or the Citees proof of payment of the alleged purchase price of Kshs. 210,000/= or the balance of Kshs 90,000/=. That, the 2 nd Respondent never made an attempt to claim ownership of the suit property while the deceased was alive, therefore, even if the impugned Agreement existed it is possible he never completed payment of the purchase price, thus, he breached it.
8. That, the 2 nd Respondent is a long-term neighbor of the deceased and his actions in respect to the suit property amount to attempted encroachment and unjust enrichment at the expense if the dependants to the Estate. That, Based on the impugned proceedings, the 1 st Respondent issued orders on 14/09/2023 directing the Citees to file succession proceedings within 60 days with a mention date set for 11/12/2023 for confirmation of the compliance.
9. That, the Order also allowed for the Citor to institute the proceedings in lieu of and despite that, the Court issued further punitive orders on 11/12/2023 committing all 16 citees to civil jail and an arrest warrant issued on 15/12/ 2023. That, on 28/12/2023, only the Petitioner was arrested and committed to civil jail vide the Committal orders issued by the 1 st Respondent on the same date.
10. That, citation orders give clear cut remedies wherein if the Citees failed to heed the orders issued then the Citor was at liberty to institute succession proceedings by himself. That, the actions by the Respondents were targeted as the suit property lies where the Petitioner and his brother had been allocated by their father and as such sought to consciously disinherit them.
11. That, the 2 nd Respondent stands to gain unjustly from a Deceased’s estate to the detriment of 16 living dependants and the Petitioner has no confidence he will receive a fair hearing and determination in Makindu Succession (Citation) Cause No. 96 of 2019 and Makindu Succession Cause No. E001 of 2024, both before the 1 st Respondent and as such wishes to have the same transferred to Makueni Law Courts.
12. The nature of injury caused to the Petitioner was stated to be ; That, the Petitioner was arrested and held at the Kenya Prison Service Makueni Remand Wote, following the committal orders, to great personal embarrassment as a man of great societal reputation and a grave cumulative violation of his human rights as a result by organs of the state.
13. That, whilst in Remand, the Petitioner contracted serious ailments occasioned by the unhygienic state and his old age which he is yet to recover from. That, as a result of the ailments, he has incurred heavy medical costs as he was admitted at Ngara Comprehensive Health Services Ltd on 15/01/ 2024 until 22/01/2024 wherein he was diagnosed with; Amoeblasis (gastro-intestinal disease), Pneumonia (respiratory disease) and Pityriasis vesicular (fungal skin disease). That, he incurred medical costs to the tune of Kshs. 236,000/= as follows;
i. Admission fees – Kshs. 45,000/=
ii. Bed charges – Kshs. 49,000/=
iii. Pharmacy services – Kshs 106,230/=
iv. Laboratory Services – Kshs 30,750/=
14. That, the Petitioner’s children; a Bio-Engineer intern in Mombasa and a student at the National Industrial Training Authority had to miss out on their academic activities owing to the arrest and detainment.
15. That, the Petitioner spent the December holidays alone at the Remand to great personal mental pain and anguish as well as that of the rest of his family. That, his family was in anguish over the looming threat of arrest as the arrest warrant was issued against the entire family.
16. The Constitutional provisions violated were stated to be;
a) The 1 st Respondent failed to ensure that he adhered to the set laws on contracts, land, citations et al and as such his actions failed to conform to Article 47 of the Constitution by granting orders that were not lawful, reasonable and in a procedurally fair manner.
b) The 1 st Respondent, through his orders, threatened to disinherit the legal dependants to the Estate of the late Mr. James Mutyanziu in violation of Section 29 (1) of the Law of Succession Act and Article 40 of the Constitution.
c) The 2 nd Respondent sought to legalize his acts of intermeddling by seeking impugned orders through the 1 st Respondent in violation of Section 45 of the Law of Succession Act.
d) The Respondents’ contravened Article 10 (2) of the Constitution by infringing on the national values and principles of governance of equity, social justice, good governance, transparency, accountability and sustainable development.
e) The Respondents’ actions are oppressive, arbitrary and unconstitutional as the unlawful detention of the Petitioner has caused an impact to his physical health.
f) The Respondents’ actions have unlawfully exposed the Petitioner to astronomical costs that he should not be liable to pay in hospital.
g) Breaching the rules of natural justice by failing to accord the Petitioner a fair hearing.
h) The 1 st Respondent is in breach of Articles 10(2) and 73(a) and (b) of the Constitution by failing to serve the people in an equitable, inclusive, accountable and transparent manner which amounts to abuse of power through intimidation, disregard for property rights and the right to fair administrative action.
i) Breach of the provisions of Article 232 of the Constitution by failing to adhere to the highest principles of public service.
The Responses
17. The 1 st Respondent , through the office of the Attorney General, filed the following grounds of opposition;
a) THAT the Petitioner has failed to specifically demonstrate how their fundamental rights and freedoms have been violated by the Honourable Senior Principal Magistrate Court at Makindu based on an alleged violation of his right to fair administrative action, as espoused in the case of Anarita Karim Njeru -vs- R (1976-1980) KLR 1272 where the Court held that "... a petitioner ought to demonstrate in precision how the respondents' actions and conduct constitute a violation or infringement of their fundamental rights and freedoms."
b) THAT the petition does not demonstrate by way of evidence any of the alleged violation of rights by the 1 st Respondent.
c) THAT Article 24 of the Constitution of Kenya permits the limitation of rights and fundamental freedom. The rights alleged to have been violated by the Petitioner do not fall under the category of non-derogable fundamental rights and freedoms as per Article 25.
d) THAT the Petitioner failed to pursue appropriate remedies to address his grievances, including lodging an appeal or seeking a review of the Citation Order through a proper forum if he believed that the Order was guided by a void Agreement for Sale and as such was unlawful and capricious.
e) THAT in Hadkinson v Hadkinson (1952) ER it was held that "where it is submitted that a court order can only be attacked by having the same set aside, it must be obeyed even where the person aggrieved by the order believes it to be irregular or void." Therefore, the Petitioner cannot claim the Citation Order was illegal in retrospect without having pursued appellate or review processes.
f) THAT in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR it was stated that
"...there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts."
g) THAT Section 9 of the Fair Administrative Action Act provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
h) THAT in Maina Gitonga v Catherine Nyawira Maina & another [2015] eKLR it was expressed that;
"It is undoubted that under the established doctrine of judicial immunity, a judicial officer is absolutely immune from criminal or civil suit arising from actions taken within or even in excess of his jurisdiction. Judicial immunity is necessary for various policies..."
Therefore, the Petitioner errs by claiming the 1 st Respondent is liable to pay all incurred medical bills.
i) THAT Article 160 of the Constitution of Kenya enshrines Judicial Independence and as such provides that a member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
j) THAT the Petitioner cannot claim that the 1 st Respondent acted ultra vires when he was rendering his judicial duty by issuing the Citation Orders.
k) THAT in Econet Wireless Kenya Ltd v Minister for Information & Communications of Kenya & Another [2005] KEHC 1767 (KLR) it was held that
"due to the gravity with which the law and the court is deemed, any contempt of court or allegations thereof, the court is usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. Therefore, the 1 st Respondent followed the proper laid out procedure to issue arrest warrants in execution of the contempt of court orders issued.”
l) THAT with regard to the Petitioner's allegation that the 1 st Respondent has breached Articles 10(2) and 73 of the Constitution, the Petitioner fails to demonstrate, with the required precision, the manner in which the alleged breaches occurred, as is required in constitutional petitions pursuant to the principles laid down in Anarita Karim Njeru v Republic (No. 1) [1979] KLR 154.
m) THAT the Petitioner has erred in law by seeking an Order of Mandamus to compel the Respondents to transfer Makindu Succession Cause No. 96 of 2019 and Makindu Succession Cause No. E001 of 2024 from the Senior Principal Magistrate's Court at Makindu to this Honourable Court or to any subordinate court at the Makueni Law Courts, without first complying with the procedure for transfer of suits as set out under Section 18 of the Civil Procedure Act.
n) THAT the prayers sought for the Orders of Certiorari and Prohibition have been overtaken by events, as the impugned proceedings have already been concluded and the court has rendered its decision. As such, the orders sought have been rendered moot and incapable of undoing what has already occurred through a final judicial determination.
o) THAT the entirety of the petitioner's claim is unmerited in that it does not disclose and demonstrate any threat or violation of the Constitution or any other laws and the same ought to be dismissed.
p) THAT The petition is without merit, an abuse of the court process and ought to be dismissed with costs to the Respondents.
18. In rejoinder, the Petitioner filed a response dated 22/07/2025 to the grounds of opposition. He averred that despite having orders allowing him to institute succession proceedings by himself, the 2 nd Respondent opted to lodge a Notice to Show Cause against the Petitioner seeking his committal to civil jail. That, under Order 22 Rule 18 of the Civil Procedure Rules , a notice to show cause is typically invoked in execution proceedings following a decree or judgment. That, lodging a Notice to Show Cause to commit to civil jail after citation orders is a breach of procedure and an illegality.
19. He averred that despite the 1 st Respondent having an implied degree of expertise and competence as an Advocate of the High Court and Magistrate, he proceeded to issue Warrants of Arrest on 15/12/2023 against the Petitioner and 15 other Dependants of the Deceased’s Estate. That, he proceeded as such despite having authority to dismiss wrongfully filed pleadings, even suo moto if he deemed it appropriate. That, the issuance of the Warrants of Arrest, despite his orders and clear procedure on citations, was ultra vires hence the decision was not procedurally fair, reasonable, explicable, or legal, thus, amounting to misuse of judicial power and process and in contravention of Section 4 (1) of the Fair Administration Actions Act, No. 4 of 2015.
20. He averred that the doctrine of exhaustion was contravened by the 1 st and 2 nd Respondents as there was an alternative remedy to the issue at hand. That the 2 nd Respondent could have filed succession proceedings and the 1 st Respondent had a legal and professional duty to ensure compliance with the doctrine by striking out the Notice to Show Cause. That the 1 st Respondent’s act of ratification of the Notice to Show Cause, without establishing correct procedural compliance, amounts to a breach of Article 47 and Article 50 of the Constitution of Kenya.
21. He averred that on 28/12/2023, warrants of committal to jail were issued against him and he was the only one arrested and detained despite the warrants of arrest being issued against all the 16 Dependants. That, he wrongfully spent approximately 2 weeks in remand including the new year’s holiday and the rest of his family was apprehensive and uncertain of probable arrests.
22. He averred that by endorsing punitive action in a succession matter without a lawful basis, the 1 st Respondent failed to uphold the standards of expeditious, efficient, lawful, reasonable, and procedurally fair administrative action as mandated by Sections 4 and 5 of the Fair Administrative Action Act. That, the Petition and Response to the Grounds of Opposition herein raise cogent grounds of constitutional and human rights violations committed against the Petitioner that ought to be heard and determined before a court with jurisdiction to hear constitutional petitions which is the Honourable High Court herein.
23. The 2 nd Respondent filed an undated Replying Affidavit where he deposed that; with regard to the allegation of violation of Article 40 of the Constitution, the Applicant has failed to demonstrate that they suffered loss and would continue to suffer substantial loss if the order sought is not granted.
24. That, with regard to alleged violation of Article 47 of the Constitution, the Applicant has not demonstrated how the action of filing a citation cause infringed on his right.
25. That, with regard to alleged violation of Article 48 of the Constitution, he deponed that it is the prerogative of the State to guarantee access to justice for all and to ensure that any fees required are reasonable and do not hinder access.
26. With regard to alleged violation of Article 50 of the Constitution, he deponed that the Applicant was granted a fair hearing during the citation proceedings.
27. He deponed that the Applicant has not met the threshold of constitutional petitions as set out in the Anarita Karimi case which prescribes that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of, noting to stipulate which constitutional provisions have been infringed and how they have been infringed. That, the Applicant has only enumerated the constitutional provisions that have allegedly been infringed by the 1 st and 2 nd Respondents but has not pleaded any particulars with reasonable clarity on how those provisions have been violated and the extent of the violation.
28. He deponed that the Applicant should have appealed against the said decision if he felt aggrieved pursuant to section 65 of the Civil Procedure Act.
29. In response to alleged violations of the Fair Administrative Actions Act, he deponed that he hds no control over the decision making of any judicial officer during the conduct of their ordinary business of dispensing justice. That, the Applicant had failed to demonstrate that the 1 st Respondent violated any of their rights and has merely made unsubstantiated allegations.
30. He deponed that the alleged infringement of rights is well available in civil redress without instituting this application. That, according to the doctrine of constitutional avoidance, where a dispute can be determined through another forum without necessarily raising a constitutional issue, the same should be pursued.
31. He deponed that he bought a four-acre portion of land known as 344 Muthingii Settlement Scheme for value from the deceased who died in 2017 before transferring the same to him. That, he requested the family members to take out letters of administration so that he could be recognized as a creditor and their subsequent refusal caused him to file a citation cause. Copies of proceedings are exhibited as JMK1.
32. He deponed that the Applicant sought to vacate orders of the 1 st Respondent by filing Makindu Civil Misc Application No E001 of 2024 where he was granted the orders sought by Justice Limo. A copy of the order is exhibited as JMK2.
33. He deponed that the Applicant had an opportunity to lodge a claim in an Environment and Land Court and ventilate his issues thereon. That, the Applicant has since come to the realization that he has no valid grounds to rebut the claim of purchase and has recognized him (2 nd Respondent) as a creditor of the estate.
34. He deponed that the claim of unfair determination has been overtaken by events as the Makindu succession cause has already been closed and he has already been recognized as a creditor of the estate.
35. He deponed that the Applicant did not adduce any committal to show that he was really incarcerated at the Makueni prison as claimed. That, the Applicant is engaging in a vexatious exercise by claiming infringement of rights on one hand and acknowledging him as a creditor on the other hand.
36. He deponed that the citation cause was closed on 18/03/2024 as the citees petitioned for letters of administration in Succession Cause No. E001 of 2024 and recognized him as a creditor of the estate hence the citation proceedings have served their purpose. The succession pleadings are exhibited as JMK3.
37. He deponed that the Applicant had not produced any documents to support his claim of medical costs incurred.
38. He deponed that the prayers for certiorari and prohibition had already been overtaken by events as the file had since been closed. That, the order for mandamus had not been properly sought and the matter had been closed hence not in a position to be transferred.
39. He deponed that this court lacked jurisdiction to entertain, hear and determine the petition as pleaded for reason that the nature of the dispute could be litigated in other legally constituted forums. That, the petition had been brought to this court in total disregard of the law and is an abuse of the court process.
40. The Petition was canvassed through written submissions.
Submissions by the Petitioner
41. The issues for determination were identified to be;
a) Whether it was reasonable and justifiable to issue warrants of arrest and committal to civil jail in a Citation matter.
b) Whether the 1 st Respondent and the 2 nd Respondent exhausted the appropriate reliefs in regards to the citation application.
c) Whether the Petitioner’s right to fair trial was infringed.
d) Whether by the 1 st Respondent issuing an injunction order serving as an eviction notice violated the Petitioner’s hereditary and proprietary rights in regards to Plot No. 344 Muthingini Settlement Scheme.
e) Whether the petitioner herein is entitled to the reliefs sought
42. On whether it was reasonable and justifiable to issue warrants of arrest and committal to civil jail in a Citation matter, it was submitted in the affirmative and reliance placed on Rule 22 of the Probate and Administration Rules for the submission that if the person cited has entered an appearance but has not within 30 days after his appearance applied for a grant under sub rule (4), or has failed to prosecute his application with reasonable diligence, the citor may, in the case of a citation under subrule (1), petition the court for a grant to himself.
43. Further reliance was placed on the Estate of Steven Mwangi Mbugua(deceased) Mombasa HCCC No 1 of 2003 where the court (Sergon J) stated;
“…if the person cited refuses or fails to appear upon being cited or to apply for the grant, the citor may proceed to petition the court for grant...”
44. It was submitted that upon issuance of citation orders, the remedies available to the 2 nd Respondent were limited to lawful succession action and not enforcement or coercion. That, the deployment of Order 22 Rule 18 of the Civil Procedure Rules in citation proceedings is not merely a technical error but a jurisprudential breach. That, Order 22 Rule 18 of the Civil Procedure Rules only permits Notice to Show Cause in execution following a lawful judgment or decree.
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