1. Before this court for determination are two applications as follows: Chamber summons dated 13/12/2023 filed by the 2nd administrator; and a Notice of Motion dated 18/12/2023 filed by the 3rd administrator.
2. The chamber summons dated 13/12/2023 seeks the following:
a) Spent
b) Spent
c) Spent
d) That this court be pleased to review, vary and or set aside the proceedings of 13/6/2023 and 7/12/2023 and all the orders made on the said dates be reviewed, varied and all set aside in its entirety
e) The cost of the application be provided for.
3. This application is based on the grounds set out on the face of it and the supporting affidavit sworn by Joyce Mwikali Kioko the 2nd administrator.
4. The grounds are that, there is an apparent error on the face of the court record to warrant the review variation and or setting aside of the orders made on 13/6/2023 and 7/12/2023.
5. It is deponed that the 2nd administrator became aware that the firm of B.M Kituku & Company Advocates by an application dated 31/5/2023 sought to cease acting for the 1st and 2nd respondent on grounds of want of instructions. That the said firm neither informed nor served the 2nd respondent with the hearing notice of the application.
6. That On 13/6/2023 both Messrs B.M Kituku and the 2nd respondent were not present when the court proceeded to allow the applicant Eleanor Mutuku Durban to be issued with limited letter of administration ad litem of the estate of Reuben Mutuku Kiva (Deceased) pursuant to the her application dated 19/4/2022 and amended on 8/6/2023.
7. It is further deponed that, the 2nd respondent strongly opposed the said application by way of a replying affidavit sworn on 28/5/2023 and 4/7/2023 as they had been ready and willing to discharge the duties of an administrator and that the applicant forged the consent attached to the application, the affidavit and the hand written letter allegedly done by the 2nd respondent.
8. It is also deponed that, previously the applicant had made an application to revoke the letter of administration issued to the respondent and which summons for revocation of grant were dismissed by rulings delivered on 25/01/2021 and on 23/12/2021. Therefore, they urged that the order of 13/6/23 ought to be set aside ex debito justiciae as the application leading to the issuance of the said limited grant is vitiated by fraud; there are already in place administrators of the estate of the deceased who were appointed on 8/5/2019 and the applicant’s previous attempts to revoke the grant issued to the administrators were dismissed by rulings delivered on 25/1/2021 and 23/12/2021.
9. Notably by way of an affidavit dated 19/3/2024 by Joyce Mwikali Kioko, the 2nd administrator, disowns the Chamber Summons application dated 13/12/2023. She deponed that together with the 1st administrator, they are represented by the law firm of B.M Kituku & Company and not the firm of Githinji Mwangi & Associates that filed the application. They urged that the order of 13/6/2023 and consent order of 7/12/2023 should remain in force as they were not opposed to it; that she never instructed the firm of Githinji Mwangi & Associates to act for her in the matter; that on 7/12/2023 while in open court she confirmed that her counsel on record and with her instruction was Messrs B.M Kituku & Company and that they proceeded to give him oral instructions to enter into the consent of 7/12/2023. That the application to cease acting dated 31/5/2023 was never prosecuted as they cooperated with counsel and counsel agreed to continue representing them. They urged the court to withdraw the application dated 13/12/2023 for want of instructions and to proceed to dismiss the 3rd administrator application dated 18/12/2023 since he was clearly represented by his counsel throughout the proceedings of 13/6/2023 and 7/12/2023 when the consent was entered.
10. From the record before me it is apparent that none of the other parties in this cause responded to this application.
11. This court is faced with a situation where a party seeks to withdraw an application claiming it was filed by an advocate who was not authorised to represent it and did so without instructions. This court recognises that legal actions do not occur in a vacuum, they are initiated by parties relying on legal provisions to seek various orders or directions. In this case the 2nd administrator asserts that she did not authorise the filing of the application and that it was submitted by an advocate who is not on record. Consequently, she requests that chamber summons dated 13/12/2023 be withdrawn for want of instruction.
12. The court has carefully reviewed the record and notes that the 2nd administrator is currently represented by the firm of Messrs B.M Kituku & Company. There is no notice on record indicating a change of advocate to suggest that a different law firm had been formally appointed to represent the 2nd administrator. However, the chamber summon dated 13th December 2023 was filed by the law firm of Githinju Mwangi & Associates who claim to be acting on behalf of the 2nd administrator.
13. Since no formal notice of change of advocate was filed, the court concludes that the application was indeed filed by an advocate officially not on record and who lacked proper instructions from the 2nd administrator. In the absence of any explanation to justify this irregularity, the court finds that the application before it is improper. It was filed by a party not authorised to act and without necessary instructions, effectively making that advocate a stranger to the proceedings.
14. As a result, this court holds that the application should not have been filed in the first place. Since it was filed without authority, it cannot even be validly withdrawn. A withdrawal can only occur if the application was properly before the court to begin with. Therefore, the court finds it appropriate to expunge the chamber summon dated 13th December 2023 from the record.
15. The second application is the notice of motion dated 18/12/2023 filed by the 3rd administrator. The application seeks the following;
a) Spent
b) Spent
c) The court be pleased to review and or set aside the proceeding and order made on 13/6/2023 and 7/12/2023
d) Cost be provided for
16. The application is premised on the grounds on the face of it as well as the supporting affidavit dated 18/12/2023 of Justus Kavita Mutuku, the 3rd administrator. The applicant herein states that the order made by the court on 13/6/2023 allowing a limited grant ad litem to issue to Eleanor Mutuku Durham ought to be revised and set aside as they were opposed to the subject application; there were already administrators of the estate of the deceased appointed on 8/5/2019 and that previous attempts to revoke the grants issued to the administrator were dismissed by the rulings on record delivered on 25/1/2021 and 23/12/2021. It thus urged that the issuing of limited letter ad litem to Eleanor Mutuku Durham was a mistake and or error apparent on the face of the court record that can be remedied by review.
17. The 3rd administrator also deponed that he was not aware of an application to add Eleanor Mutuku Durham as a 4th administrator in this cause and that he had not given any instructions to Ms. Kingoo advocate to concede to any such applications; that, the mention on 7/12/2023 was meant to sort out the issue of representation of the co-administrator, that consent was not sought and or given to add Eleanor Mutuku Durham as the 4th administrator, that given the ruling of 25/1/2021 and 23/12/2021 it was a unprocedural to add Eleanor Mutuku Durham as the 4th administrator. That it opposed the application dated 19/4/2022 amended on 8/6/2023 by filing replying affidavits on record sworn on 4/6/2023 and 30/3/2023; that Eleanor Mutuku Durham has continued to frustrate the 3rd respondent by filing suits against him. He urged that there’s sufficient reason to set aside the orders.
18. The notice of motion application dated 18/12/2023 was opposed by the 2nd administrator in her replying affidavit sworn on 19/3/2024 by Joyce Mwikali Kioko. Also opposing the application is the 4th administrator, Eleanor Mutuku Durham who filed a replying affidavit sworn on 23/1/2024. The 4th administrator deponed that the administrators while aware of the fraudulent dealings of the 3rd administrator in relation to property of the estate have neglected to counter the dealings thus she appropriately moved the court through an amended summon dated 8/6/2022 for a prayer to be granted limited grant of letters of administration ad litem for purposes of filing and prosecuting a suit at the Environment and Land Court seeking orders to reverse the illegal transfers; seeking to protect the estate of the deceased. That the 2nd administrator herein is at an advanced age and sickly and therefore unable to diligently represent the estate of the deceased; the law of succession does not restrict the persons eligible for a limited grant ad litem to the current administrators as persons entitled to the administration only. That the 3rd administrator has all along been represented by the firm by King’oo Wanjau & Company advocates since the filing of the petition and his sudden change of advocates after consent is an abuse of the court’s process; that a duly instructed advocate has a general duty to compromise and settle an action and the client cannot take advantage of the implied authority, therefore any order made in presence of and with consent of counsel is binding on all parties to the proceeding or action; that there is no error or mistake apparent on the face of the court record with regard to the order issued on 15/6/2023 that would warrant a review or setting aside the order entered by consent on 7/12/2023, no loss will be suffered if the orders are not granted .
19. Upon the courts direction this application was to be canvassed by way of submission. As at the time of writing this ruling only the 1st and 2nd Respondents had filed their submissions dated 27th April 2025.
20. The 1st and 2nd administrators indicated that they are represented by the firm of B.M Kituku Co Advocates whom they had given instructions and that the orders of 13/06/2023 and further consent orders of 7/12/2023 should remain in force as they are not opposed. That they appeared before court in person on the same date 7/12/2023 and gave oral instructions on the consent which was duly adopted by the court. They urged the court to dismiss the application dated 18/12/2023 and 13/12/2023 with costs.
21. This court having expunged the application dated 13/12/2023 from the record of the court, the only application pending determination is the Notice of Motion dated 18/12/2023. In this application, the applicant who is the 3rd administrator of the estate of Reuben Mutuku Kiva (deceased) seeks that this court be pleased to review and or set aside the proceedings and orders made by this court on 13/6/2023 and 7/12/23. He has moved court under the provisions of Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 63€ and 80 of the Civil Procedure Act.
22. The gist of the application as discerned by the court is the 3rd administrator assertions that the orders made on 13/6/2023 and 7/12/2023 be reviewed on the basis of an apparent error on the face of the record. The identified errors are that; he had not given instructions to Ms Kingoo Advocate to concede to the application when it came up for mention on 7/12/2023; the mention was to sort out the issue of representation of the co-administrators; his consent was not sought and or given to add Eleanor Mutuku Durham as a 4th administrator; previous summons for revocation of grant made by the applicant were dismissed by the rulings delivered on 25/01/2021 and 23/12/2021.
23. The proceedings of 13/6/2023 and 7/12/2023 are at the centre of this application. From the proceedings of 13/6/2023 the record indicates that Mr Musyimi appeared for the applicant; Ms Kingoo Wayua was present for the 3rd Respondent and there was no appearance from the firm of B.M Mutuku. On this day the court ordered that (a). the amended summons filed in court on 9th /6/2023 is deemed to be properly filed; (b). prayer 2 of the amended summon filed in court on 9/6/2023 is allowed (c). the 3rd respondent is granted 14 days to file a further affidavit/supplementary affidavit (d). matter be heard on 4th /10/2023 (e ). parties given leave to file bundle of documents within the next 45 days (f). the applicant to serve the 1st and 2nd respondents.
24. On 7/12/2023 this matter again came up in court before Hon. Rayola Ole J. where the parties were represented as follows, Ms Kingoo Wayua for Justus Kavita; Ms Kituku for the 1st and 2nd respondent administrators and Mr. Musyimi for Hellen Mutuku Durban. The court was then informed that the parties were in agreement that Eleanor Mutuku Durham be added as an administrator to the estate. All the counsel confirmed this position and the court proceeded to make the following orders.
a) Eleanor Mutuku Durham be added as an administrator to the estate of Reuben Mutuku Kiva and new letter of administration be issued.
b) The application/ amended summon dated 8/06/2023 be marked as withdrawn with no orders as to costs.
c) The 1st and 2nd administrator to file fresh summons for confirmation of grant.
25. It is this orders that the applicant seeks to set aside. Thus, the issue for determination before this court is Whether the 3rd respondent’s application has met the threshold for the grant of orders of review
26. In the Court of Appeal case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR the court observed as follows in respect of reviews applications:
-A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceeds on an incorrect expansion of the law.
27. Further in Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] KEHC 7414 (KLR) the court held;
The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible.[13] Discussing the scope of review, the Supreme Court of India in the case of[14] had this to say:-
“the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule”
28. The Court holds that the assertion that counsel acted without the direction of the 3rd administrator is not an an error apparent on the face of the record for purposes of exercising the power of review.
29. Indeed, as confirmed by the parties the proceedings on record are a true reflection of what transpired and the only issue is the allegation that the 3rd administrator did not agree with the submission of his counsel on record. This is not a ground to warrant a review of the orders.
30. In addition, it is well settled that an advocate properly on record for a party has an implied authority to compromise and settle an action and the 3rd administrator cannot validly claim that the consent order ought to be set aside for the reason that it was contrary to his direction. A consent order entered into by counsel is binding on the parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion (See Kenta Commercial Bank v Specialised Engineering Co. Ltd (1982) KLR 485)
31. In the circumstance, I do find that the 3rd applicant has not shown or demonstrated any apparent error on the face of the record or any other ground under the provisions of Order 45 Rule 1 to warrant setting aside and or review of the orders. Thus, I make the following orders;
a. The Chamber summon dated 13/12/2023 is expunged from these proceedings
b. The notice of motion dated 18/12/2023 filed by the 3rd administrator is dismissed
c. Given that this is a family matter there shall be no orders as to costs.