IN THE ESTATE OF SUDHA RAJNIKANT SHAH

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

SUCCESSION CAUSE NO. 15 OF 2017

IN THE MATTER OF THE ESTATE OF SUDHA RAJNIKANT SHAH

AND

IN THE MATTER OF AN APPLICATION BY:

RONAK RAJ SHAH &

ASHOK KHETSHI SHAH……………PETITIONERS/1^st RESPONDENTS

VERSUS

PRASHANT RAJNIKANT SHAH……………………….…..1^ST CAVEATOR

SONAL RAJNIKANT SHAH……………………………......2^ND CAVEATOR

AND

SHAKUNT RAJNIKANT SHAH…………………….…….....RESPONDENT

RULING

1. Whereas this matter is part heard and Mr Isaac Okero was still cross- examining the 1^st Caveatotr, on 23^rd May 2024, Mr. Isaac Okero, counsel for the 2^nd Respondent made an application under Section 3A of the Civil Procedure Act and invoked the jurisdiction of this Court to make orders as shall meet the end of justice, for variation of ex-parte orders made on 21^st July 2020 in respect of orders (b) and (c) and specifically craved for the release of sum Kshs. 11, 636,531 plus interest from the date of the order to date held in Bank of Baroda.
2. The application was grounded on the admission by the 1^st Caveator in his Affidavit sworn on 24^th August 2020 at paragraph 21 (d) and further admissions made on oath by the 1^st Caveator when been cross-examined on 22^rd May 2024, that the said sum is not part of the estate of the deceased and he has not made any demand for the inclusion thereof in the properties comprising the estate of the deceased. The 2^nd respondent’s Counsel thus moved this Court for the variation of the orders freezing the funds.
3. In response to the oral application, Mr. Menezes, Counsel for 2^nd Executor/Petitioner told the Court that the role of the 2^nd Executor is peripheral and from a legal perspective he wished to state that the evidence adduced by the witness remained untested via re-examination and cross-examination by the Executors.
4. Mr. Otieno David, Counsel for the Caveators, opposing the application, told the Court that the same was misconceived, a gross abuse of Court process and res judicata. He insisted that my learned colleague Lady Justice T. W. Cherere issued orders ex-parte on 21^st July 2020, based on the information placed before the Court. On 22^nd October 2020, while issuing its directions that prompted the now hearing of the application dated 15^th July 2020 viva voce referred to the orders issued on 21^st July 2020, directing that they shall remain in force until further orders of the Court.  He insisted that the 2^nd Respondent’s application is res judicata as vide an application dated 16^th November 2020, he sought a variation of the orders made on 21^st July 2020, wherein he requested inter alia, a variation of the orders made for deposit of his passport in Court. The Court under the stewardship of Lady Justice Kamau allowed his application for the release of his passport on the condition that the 2^nd Respondent deposits a security of Kshs. 2,000,000/= and two sureties and that he could only leave the jurisdiction of the Court with the leave of this Court. The caveators’ counsel submitted that previous Judge had duly considered the contents of the affidavit by the Caveators when she rendered her ruling whereat she declined the prayer for the release of the said monies. It is further submitted that it is essential for the proceedings to be concluded and that it was improper for the 2^nd respondent to keep on making interim applications in the middle of cross-examinations. Counsel maintained were the court to allow the variation of orders prior to the re-examination and cross-examination of the witness by other Counsels, the right of the other parties to fair hearing as envisaged under Article 50 of the Constitution of Kenya would be infringed. He insisted that the admission of the 1^st Caveator is a matter for determination by this Court. He prayed for the dismissal of the 2^nd Respondent’s application.
5. In a rejoinder, Mr. Okero, counsel for the 2^nd Respondent submitted that the counsels for the Caveators and 2^nd Executor are proceeding on a misdirection as the directions issued on 22^nd October 2020, merely extended the ex-parte orders and the directions were to await the determination of the application which was to be done by way of viva voce evidence. He insisted that Section 7 of the Civil Procedure Act applies to suits and not to interlocutory applications.

Analysis and determination

1. A party may seek to vary Court orders under certain circumstances, typically by filing a formal application supported by evidence. The Court has discretion to grant or deny such applications based on the merits of the case and the interests of justice. In a succession matter, if a party seeks to vary existing Court orders during the course of a hearing, this may involve changes to the distribution of the deceased's estate, the appointment of Administrators/Executors, or other matters. Where the request for variation arises while the hearing is ongoing, and the Court must consider the implications of such a request on the proceedings and the rights of the other parties involved.
2. This Court has the discretion to vary its orders at any time, provided there are sufficient grounds for doing so. This is supported by Section 47 of the Law of Succession Act, which grants the High Court jurisdiction to make such orders as may be expedient in succession matters. Additionally, Rule 73 of the Probate and Administration Rules allows the Court to make orders necessary for the ends of justice.
3. A party seeking to vary Court orders must demonstrate valid grounds for the variation. This may include new evidence, changes in circumstances, or the need to correct an error in the original order. The Court will consider whether the variation is in the best interests of justice and the beneficiaries of the estate.
4. As regards the order for varying, Order 45 of the Civil Procedure rules is applicable in Succession matters which both parties admit. The order stipulates as follows;
5. Any person considering himself aggrieved; -
6. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
7. by a decree 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 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.
8. The reasons for varying sought for by the 2^nd Respondent include; the admission by the 1^st Caveator in his Affidavit sworn on 24^th August 2020 at paragraph 21 (d) and further admissions made on oath by the 1^st Caveator when been cross-examined on 22^nd  May 2024, that the said sum of Kshs. 11, 636,531 plus interest is not part of the estate of the deceased and that he had not made any demand for the inclusion thereof in the properties comprising the estate of the deceased.
9. It is indeed true that the Court was well aware of the contents of the 1^st Caveator’s Affidavit dated 28^th August 2020, when it issued the impugned orders on 21^st July 2020. Further on 22^nd October 2020, the Court vide its directions having considered the Caveators application dated 15^th July 2020, the Affidavits sworn in support thereto and the responses categorically stated that the issued raised therein are highly contentious and cannot be safely determined by Affidavit evidence, thus viva voce evidence will afford the parties an opportunity to present their cases. 
10. As counsel for the 2^nd Executor stated the evidence as adduced by the 1^st Caveator herein still remains untested through cross-examination and re-examination yet the right to cross-examine witnesses and conversely  to re-examine them, is a fundamental aspect of the adversarial legal system. Article 50 of the Constitution of Kenya guarantees a party’s right to a fair hearing and Section 146 of the Evidence Act stipulating the Order and direction of examinations. Cross-examination allows parties to challenge the credibility and reliability of the evidence presented. The failure to allow cross-examination before varying orders may infringe on the rights of the other parties to a fair hearing.
11. From the foregoing it is evident that the 2^nd Respondent has not outlined credible reasons for this Court to vary its orders as issued on 21^st July 2020, rather the 2^nd Respondent wishes to instruct this Court to make a determination solely based on their cross-examination to the exclusion of the other parties. Whereas this court may appreciate the economic implications of the freezing of the 2^nd Respondent’s account, this issue at hand as already been determined by my predecessor Justice Kamau wherefore I cannot sit in appeal of her ruling. His application dated 23^rd May 2024, is simply an abuse of Court
12. In this result, I do find that the 2^nd Respondent’s application dated 23^rd May 2024, is res judicata and the same is dismissed with no orders as to Costs.
13. Parties are directed to take a mention date for purposes of proceeding with the hearing of the Caveat application dated 15^th July 2020.
14. Orders accordingly.

Dated and delivered at Kisumu this 9^th day of April 2025.

M.S.Shariff

Judge

IN THE PRESENCE OF :

MITCHELL MENEZES for EXECUTORS/1^ST RESPONDENTS

N/A BY DAVID OTIENEO for 1^ST & 2^ND CAVEATORS/APPLICANTS

ISAAC OKERO FOR  2^nd RESPONDENT

DIANA COURT ASSISTANT