IN THE MATTER OF ESTATE OF WAINAINA ICHARIA

1. Vide Application dated 21st June 2022, presented under Rule 49, 59 of the Probate and Administration Rules and Section 1A,1B and 3A of the Civil Procedure Rules and other enabling provisions of the law, the Applicant seeks the following orders

        1) THAT land Reference number KIAMBAA/KIHARA/512 the only property in this succession cause be divided in accordance with the         further rectified certificate of confirmation of grant dated the 9th May 2018.

        2) THAT this Honourable court directs the District Land Surveyor- Kiambu to visit the land and carry out the said sub division.

        3) THAT the OCS Karuri Police Station be ordered to provide security to the District Surveyor while executing his duties

        4) THAT the costs of this application be provided for

2. The Application is supported by the Affidavit of GEOFFREY KARIUKI WAINAINA, the Applicant sworn on 21st June 2022.

3.  The Application is opposed and the Respondent has filed a Replying Affidavit sworn on the 16th March 2023.

4. The Application proceeded by way of oral submissions with both parties relying on the Affidavits on record.

5. The Applicant avers that his efforts to distribute the estate in accordance with the Rectified Grant dated 9th May 2018 have been frustrated by the Respondent and he therefore seeks the intervention of the Court to provide protection to the District Land Surveyor to enable him subdivide the land as per rectified grant.

6. The Applicant avers that the other beneficiaries are not opposed to the distribution and that it is only the Appellant who is blocking the finalisation of the matter.

7. The Applicant urges the court to take into cognisance that the grant was confirmed in 2011 and that it is therefore rather late in the day for the Applicant to be seeking to challenge the grant given the entire history of the matter.

8. The Respondent is opposed to the Application on the basis that he has filed a summons for revocation of grant dated 16th March 2023.

9. He avers that not all the beneficiaries consented to the mode of distribution and that the Court was misled in confirming the grant in 2011. Further he submits that the deceased by oral will had directed on the distribution of the estate and that the grant was obtained by means of an untrue allegation.

10. The Respondent therefore urges that the Court defer the orders sought until the summons for revocation is heard.

11. This matter was filed in Court 39 years ago. This means that the intended beneficiaries have been denied access to their entitlement for this period. This flies in the face of one of the tenets of justice which is that justice must not be delayed. This has found expression in Article 159 (2) of the Constitution of Kenya, that sets out the principles that guide courts and tribunals in exercising judicial authority.

12. The matter was commenced on 13th April 1984 by Petition by Reuben Karongo Wainaina (now deceased). The Petitioner was a son of the deceased.

13. Wambui Gikwa (now deceased), a daughter of the deceased successfully filed an objection to the petition for grant of letters of administration and on 7th January 1988 the Court ruled that the deceased died intestate and granted letters of administration to both Reuben Karongo Wainaina and Wambui Gikwa alias Wambui Wainaina Icharia.

14. By ruling rendered on 20th December 1991, the Court further directed that the land Parcel No. KIAMBAA/ KIHARA/512 be inherited by the following in equal shares

                1. George Karongo Wainaina (son of first wife)

                2. Wambui Gikwa alias Wambui Wainina Icharia

                3. Reuben Karonge Wainaina

                4. Stanley Kihara

                5. Stephen Munga

                6. Cyrus Kamau

                7. Geoffrey Kariuki

                8. George Kiniu

                9. Ndungu Wainaina

The Court directed that the Administrators proceed to apply for confirmation of grant on these terms.

15. On 28th June 2011, the record indicates that Mr. Osoro appearing for the Administrators appeared before Hon. Maraga J (as he then was) seeking confirmation of the grant and informed the Court that 2 of the beneficiaries had declined to sign consent. After hearing the Applicant, Hon. Maraga J proceeded to confirm the grant, affirming the orders earlier granted by Hon. Githinji J. that the estate be shared equally between the beneficiaries.

16. By Application dated 1st July 2011, Peninah Njuhi Mbaruku sought to have the grant annulled / and or revoked. The Application was canvassed and ruling delivered on 11th February 2015 by Hon. Muchelule J (as he then was) dismissing the Application.

17. Following the death of Reuben Karongo Wainaina, the Applicant herein filed application dated 14th November 2016 seeking that he be appointed co- administrator to replace Reuben Karongo Wainaina. A consent was recorded and a rectified confirmed grant issued on 8th May 2017.

18. Subsequent to this the Applicant herein filed an Application dated 27th November 2017 seeking to compel the co-administrator to sign all necessary and relevant documents to facilitate completion of the administration of the estate and in default she be removed from acting as administrator.

19. The record indicates that the Application came up for hearing on 18th April 2018, Mr. Mbaya, Advocate was holding brief for Mr. Kamau Advocate who was on record for the Respondent (Co- Administrator, Wambui Gikwa alias Wambui Wainaina Icharia). The Court (Hon. Onyiego J.) declined a request for adjournment and delivered its ruling on 9th May 2018 directing that: -

(a) The respondent (administrator) herein Wambui Gikwa alias Wambui Wainaina Icharia be and is hereby given 45 days within which to sign all the necessary documents relevant to facilitate the process of transmission of individual beneficiaries’ shares and completion of the administration of the estate

(b) In default of the above directive, the respondent shall cease to be an administrator of the estate herein and a fresh grant and certificate of confirmation of grant shall issue to the applicant Geoffrey Kariuki Wainaina as the sole administrator to facilitate and complete the administration of the estate.

(c) Costs in the cause

20. It would appear that the Co-Administrator failed to comply with the directive of the Court and Further Rectified Grant was issued on 9th May 2018 confirming the Applicant herein as the sole administrator.

21. In the Application before court the Applicant is seeking to finalise the distribution of the estate. His efforts have been frustrated by the Respondent.

22. The Respondent does not deny that he has obstructed the survey of the subject parcel of land and proceeds to justify his actions on the basis that he and other family members are opposed to the mode of distribution in the confirmed grant.

23. He further seeks the delay the administration of the current estate on the ground that there is need to include other property of the deceased. In paragraph 10 he concedes that they do not have documentation to support proof of ownership of that parcel of land.

24. Having reviewed the court record, pleadings and submissions of the parties herein I find that the issue for determination is

(a)  Whether the Applicant should be allowed to proceed, as Administrator of the estate of the deceased, to subdivide the estate of the deceased in accordance with the further rectified certificate of confirmation of Grant.

25. The record shows that the Certificate of Confirmation of Grant was issued on 28th June 2011.  The Administrator seeks to finalise the distribution of the estate, this is opposed by the Respondent on the grounds set out in the Affidavit sworn on 16th March 2023.

26. A number of the assertions in the said affidavit are not borne out by the record of the Court.

27. The averments of paragraph 8 are not factual to the extent that it is alleged that the Court was misled into confirming the Summons for confirmation of grant. On the contrary the record shows that on 28th June Mr. Osoro Advocate appeared before Hon. Maraga J (as he then was) and submitted as follows:

Mr. Osoro: This cause was heard by Justice Githinji who ordered that the estate be distributed equally. The beneficiaries except two have signed the consent to that effect. The two claim that a property belonging to their mother who is alive be taken into account.

Court:  Grant is hereby confirmed. The deceased’s estate to be shared equally.

28. The Respondent in paragraph 10 also challenges the ruling of the Court delivered on 9th May 2018 again alleging that the Applicant misled the Court that the Co Administrator had failed to sign the transmission documents. As stated above on the day the Application came up for hearing the Counsel for the Co Administrator was present in Court and sought an adjournment that was denied by the Court.

29. It is contended that the Administrator failed to disclose that that the Deceased had infact expressed his wishes via an oral will. Once again the record will show that on 7th January 1988 the Court found that the Petitioner failed to prove the oral will and therefore determined that the deceased died intestate and appointed both Reuben Karongo Wainaina and Wambui Gikwa alias Wambui Wainaina Icharia as co administrators.

30. Given the misrepresentations by the Respondents in the Replying affidavit I find that this is a classical case of a party employing ‘Stalingrad tactics’ aimed at frustrating the conclusion of the matter, which amounts to abuse of court process.

31. ‘Stalingrad strategy’ is defined as ‘a strategy of wearing down the plaintiff by tenaciously fighting anything the plaintiff presents by whatever means possible and appealing every ruling favourable to the plaintiff. Here, the defendant does not present a meritorious case. This tactic or strategy is named for the Russian city besieged by the Germans in World War II’.

32. The South African Constitutional Court had occasion to expound on it in the matter of Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others (CCT 66/21) [2022] ZACC 37; 2023 (2) SA 68 (CC) (14 November 2022)

33. In that matter the Court cited the with approval the definition of abuse of court process proffered in the case of Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others (CCT 212/18) [2019] ZACC 41; 2020 (1) SA 327 (CC) ; 2020 (1) BCLR 1 (CC); 2019 BIP 34 (CC) (24 October 2019)

“Abuse of process concerns are motivated by the need to protect ‘the integrity of the adjudicative functions of courts’, doing so ensures that procedures permitted by the rules of the Court are not used for a purpose extraneous to the truth seeking objective inherent to the judicial process.”

34. Whereas this Court is obligated to safeguard the rights of parties to access to justice and right to a fair hearing as provided for under Articles 48 and 50 of the Constitution of Kenya respectively, this must be weighed against the guiding principles laid out in Article 159 of the same Constitution.

35. The use of ‘Stalingrad tactics’ undermine the decisions and authority of the courts, court process, and the administration of justice, significantly threaten the rule of law and the justice system in general.

36. The Court of Appeal in the decision of Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR expressed itself as follows in asserting the Court’s duty to avoid abuse of Court process;

In our view, the often quoted principle that a party should have his day in court should not be taken literally.  He should have his day only when there is something to hear.  No party should have a right to squander judicial time.  Hearing time should be allocated by the court on a need basis and not as a matter of routine.

Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.

37. In light of the foregoing I find that to allow the Respondent to delay the administration of the estate would amount to an abuse of the process of the Court and would constitute a miscarriage of justice.

38. That being so, the Application dated 21st June 2022 is allowed in its entirety and the following orders made

1. THAT Land reference Number KIAMBAA/ KIHARA/512 be subdivided in accordance with the Further Rectified Certificate of Confirmation of Grant dated 9th May 2018

2. The District Land Surveyor Kiambu to carry out the said subdivision

3. The OCS Karuri Police Station to provide security to the District Surveyor while executing his duties

4. The Respondent to pay the costs of this Application

It is so ordered